Kenya’s Security Act: Notes

Kenya’s president, former ICC indictee Uhuru Kenyatta, assented to a very bad law on December 19, 2014. The Security Laws (Amendment) Act, 2014 was rammed through the National Assembly by the House Speaker, Mr. Muturi, and the Jubilee coalition majority. It is not enough to say that this is a very bad law and that it was passed in a terrible manner.

I’m going to demonstrate why this Act is very bad law by focusing on three aspects: implications for working class and poor activists and residents of Kenya; implications for refugees; and implications for rights and freedoms. Even though I’m not a political strategist, afterwards, I’ll suggest what might be the long game in play.

In short, I believe the Jubilee coalition would like to amend the constitution, and passing this Act—how it was passed and that it passed—is simply one step in that direction.
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1. Clarifications
Although the Act is being discussed as though it refers to one aspect of the law, it was an omnibus legislation that, in the original Bill, sought to amend portions of the following laws:

The Public Order Act (Cap.56)
The Penal Code (Cap.63)
The Extradition (Contiguous and Foreign Countries) Act (Cap. 76)
The Criminal Procedure Code (Cap. 75)
The Registration of Persons Act (Cap. 107)
The Evidence Act (Cap. 80)
The Prisons Act (Cap. 90)
The Firearms Act (Cap. 114)
The Radiation Protection Act (Cap. 243)
The Rent Restrictions Act (Cap. 296)
The Kenya Airports Authority Act (Cap. 395)
The Traffic Act (Cap. 403)
The Investment Promotion Act (Cap. 485)
The Labour Institutions Act (No. 12 of 2012)
The National Transport Safety Authority Act (No. 33 of 2012)
The Refugees Act (No. 13 of 2006)
The National Intelligence Service Act (No. 28 of 2012)
The Prevention of Terrorism Act (No. 30 of 2012)
The Kenya Citizenship and Immigration Act (No. 12 of 2011)
The National Police Service Act (No. 11A of 2011)
The Civil Aviation Act (No. 21 of 2013)

To understand the full implications of the proposed amendments, one would have to see how amendments to each law work cumulatively.

One generalization: across different laws, the amendments endow the Cabinet Secretary with more power. The Cabinet Secretary is not elected. This is a position held at the president’s pleasure.

Note the following:

The Public Order Act
This Bill seeks to amend the Act to make specific reference to Governors, members of county assemblies, counties, the Cabinet Secretary for Interior and Co-ordination of National Government, the Director of Public Prosecutions, the Inspector-General of Police, and the National Police Service.

The Traffic Act
The Bill requires the Cabinet Secretary to make rules relating to licensing of establishments of establishments or persons engaged in selling, hiring or leasing motor vehicles, motor vehicle spare parts dealers and garages.

The Investment Promotion Act
The Bill proposes to amend the Investment Promotion Act in order to specify the matters in which the Cabinet Secretary is required to make Regulations on, which inter alia includes prescribing the categories of employees to be issued with work permits and prescribing procedures for the vetting of investors.

The Prevention of Terrorism Act
A presumption shall be made regarding a person who travels to a country designated by the Cabinet Secretary to be a terrorist training country, where that person does not pass through the designated exit points.
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1. Fines
As enacted, the Act substantially increases fines across a number of areas. So much so that what might be considered regulatory—accounting, in part, for the massive unemployment in Kenya and the tough economy for most Kenyans—becomes punitive, as it increases the reach and grasp of the carceral state.

Public Order Act:

Security Act (Amendment):
2. Section 3 of the Public Order Act is amended—
(a) in subsection (1) by deleting the words ?one thousand shillings or to imprisonment for a term not exceeding six months and substituting therefor the term ?one hundred thousand shillings or imprisonment for a term not exceeding two years.

Section 3 of the Public Order Act addresses Quasi-Military Organizations and Public Uniforms. More specifically, this section deals with “Prohibition of organizations equipped to usurp the functions of police, etc.” It reads:

3. (1) If the members or adherents of any association of persons, whether incorporated or not, are—

(a) organized or trained or equipped for the purpose of enabling them to be employed in usurping the functions of the police or of the armed forces; or

(b) organized and trained or organized and equipped either for the purpose of enabling them to be employed for the use or display of physical force in promoting any political object, or in such manner as to arouse reasonable apprehension that they are organized and either trained or equipped for that purpose,

then any member or adherent of such association shall be guilty of an offence and liable to a fine not exceeding one thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment, and any person who promotes or conspires with another to promote or who takes part in the control or management of the association, or in so organizing or training or equipping as aforesaid any member or adherent thereof, shall be guilty of an offence and liable to a fine of two thousand shillings or to imprisonment for a term not exceeding three years, or to both such fine and such imprisonment:

Provided that in any proceedings against a person charged with the offence of taking part in the control or management of such an association as aforesaid it shall be a defence to that charge to prove that he neither consented to nor connived at the organization, training or equipment of members or adherents of the association in contravention of the provisions of this section.

4. Section 8 of the Public Order Act is amended—
(c) in subsection (6) by deleting the term ?one thousand and substituting therefor the term ?ten thousand.

Section 8 of the Public Order Act deals with Curfews

8. (1) The Commissioner of Police or a Provincial Commissioner may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area (being, in the case of a Provincial Commissioner, within his province) and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorized by or under the curfew order.

(6) Any person who contravenes any of the provisions of a curfew order or any of the terms or conditions of a permit granted to him under subsection (1) of this section shall be guilty of an offence and liable to a fine not exceeding one thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.

In Kenya, most curfew orders are set for 12 hours: from 6:30 p.m. to 6:30 a.m. As of this writing, Lamu has been under curfew orders for 4 months.

5. Section 9 of the Public Order Act is amended—
(c) in subsection (6) by deleting the term ?one and substituting therefor the term ?ten.

Section 9 of the Public Order Act reads

9. (1) A police officer in charge of the police in a province or a police officer in charge of a police division may, if he considers it necessary in the interests of public order within the area of his responsibility so to do, by order (hereinafter referred to as a curfew restriction order) prohibit, during such hours as may be specified in the curfew restriction order, all persons, or, as the case may be, all members of any class of persons specified in the curfew restriction order, from entering, being or remaining, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew restriction order, in or at any premises specified in the curfew restriction order:

(6) Any person who contravenes any of the provisions of a curfew restriction order or any of the terms or conditions of a permit granted to him under subsection (1) of this section shall be guilty of an offence and liable to a fine not exceeding one thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.

6. Section 11 of the Public Order Act is amended in subsection (1) by deleting the term ?ten and substituting therefor the term ?one hundred.

Section 11 of the Public Order Act reads

11. (1) Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any street or public place any offensive weapon shall be guilty of an offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding ten thousand shillings, or to both such imprisonment and such fine.

In the legislation’s definitions:
“offensive weapon” means any article made or adapted for use for causing injury to the person, or intended by the person having it in his possession or under his control for such use;

9. Section 17 of the Public Order Act is amended by deleting the term ?five thousand and substituting therefor the term ?fifty thousand.

Section 17 of the Public Order Act reads

17. Every person who is guilty of an offence under this Act, or under any regulations made thereunder, in respect of which no special penalty is provided shall be liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment.

The Penal Code

Security Act Amendment:
12. The Penal Code is amended by inserting the following new section immediately after section 66?

Prohibited publications and broadcasts.

66A. (1) A person who publishes, broadcasts or causes to be published or distributed, through print, digital or electronic means, insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both.

(2) A person who publishes or broadcasts any information which undermines investigations or security operations by the National Police Service or the Kenya Defence Forces commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or a imprisonment for a term not exceeding three years, or both.

Section 66 of the Penal Code
66. Alarming publications

(1) Any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanour.

(2) It shall be a defence to a charge under subsection (1) if the accused proves that, prior to publication, he took such measures to verify the accuracy of the statement, rumour or report as to lead him reasonably to believe that it was true.

Registration of Persons Act

24. Section 14 of the Registration of Persons Act is amended—
(a) in subsection (1) by deleting the term ?fifteen and substituting therefor the term ?two hundred;
(b) in subsection (2) by deleting the term ?five and substituting therefor the term ?fifty;

Section 14 of the Registration of Person’s Act

14. Offences and penalties
(1) Any person who—
(a) fails to apply to be registered in accordance with the provisions of this Act; or
(b) in giving any information for the purposes of this Act, knowingly or recklessly makes any statement which is false in a material particular; or
(c) unlawfully deprives any person of an identity card issued to him under this Act; or
(d) unlawfully makes an entry, alteration or erasure on any identity card or on any registration document; or
(e) unlawfully issues an identity card or laminates or prints an identity card or any of its component parts; or
(f) is in unlawful possession of or makes use of an identity card belonging to any other person; or
(g) falsely states that he has not previously been registered or commits any act or makes any false representation or omission with the object of deceiving a registration officer; or
(h) is knowingly in possession of an identity card containing any false entry, alteration or erasure; or having previously had issued to him an identity card under this Act, obtains or attempts to obtain another identity card without disclosing to the registration officer the fact of the previous issue and the loss, mutilation or destruction of any identity card previously issued; or
with intent to deceive—
(i) makes a false representation that he or any other person is the person to whom an identity card relates; or
(ii) except in such cases as may be prescribed permits any other person to be in possession of an identity card issued to him; or
(iii) forges or mutilates an identity card, or makes or has in his possession any document so closely resembling an identity card as to be calculated to deceive; or
being a person employed for the purposes of this Act, publishes or communicates to any person otherwise than in the ordinary course of his employment, any information acquired by him in the course of the employment; or
having, under subsection (2) of section 5, inspected the register and made extracts therefrom, publishes or communicates to any person, otherwise than in the ordinary course of his employment, any information so acquired; or
having possession of any information which to his knowledge has been disclosed in contravention of this Act, publishes or communicates that information to any other person; or
without the written authority of the Principal Registrar, charges fees for the delivery of lost and found identity cards,
shall be guilty of an offence and liable to a fine not exceeding fifteen thousand shillings or to imprisonment for a term not exceeding eighteen months or to both:

Provided that nothing in Paragraphs (k), (l) and (m) shall apply to any publication or communication of information made for the purpose of any proceedings before a competent court.

(2) If any person contravenes any of the provisions of this Act or of any rules made thereunder or with any lawful demand or requirement made under this Act or under such rules, he shall be guilty of an offence and where no other penalty is specifically provided liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding two months or to both, and in any case where a person has been convicted of an offence involving failure to register under this Act the court may, in addition to or in substitution for any sentence which it may impose upon that person under this section, order him to register himself within such period as it may specify.

Traffic Act

Security Act Amendment:
39. Section 12 of the Traffic Act is amended by inserting the following new subsection immediately after subsection (1)—
(2) A person who contravenes or fails to comply with the provisions of this section commits an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or imprisonment for a term not exceeding twelve months or both.

Section 12 of the Traffic Act

12. Vehicles to carry identification plates
(1) No motor vehicle or trailer registered under this Act or driven under the authority of a general dealer’s licence shall be used on a road unless there is fixed thereto in the prescribed manner the prescribed number of identification plates of the prescribed design and colour on which is inscribed the identification mark of the vehicle or of the general dealer’s licence:

Security Act Amendment
40. Section 118 of the Traffic Act is amended in subsection (2) by?
(a) deleting the words ?ten thousand shillings appearing in paragraph (a) and substituting therefor the words ?one hundred thousand shillings;

(b) deleting paragraph (b) and substituting therefor the following paragraph?
(b) for second or subsequent offence, to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding twelve months.

Section 118 of the Traffic Act
118. General penalty
(1) Any person who acts in contravention of or fails to comply with the provisions of this Act, or who acts in contravention of or who fails to comply with the conditions of any licence, order, demand, requirement or direction issued under or in pursuance of this Act, shall be guilty of an offence.

(2) Any person who is guilty of an offence under this Act for which no penalty is otherwise provided shall be liable—

(a) for a first offence, to a fine not exceeding ten thousand shillings;

(b) for a second or subsequent offence, to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding three months or to both.

Prevention of Terrorism Act

30F. (1) Any person who, without authorization from the National Police Service, broadcasts any information which undermines investigations or security operations relating to terrorism commits an offence and is liable on conviction to a term of imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings, or both. (2) A person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a period not exceed three years or to a fine of five million shillings, or both.

Section 30 of the Prevention of Terrorism Act

30. A person who knowingly possesses an article or any information held on behalf of a person for the use in instigating the commission of, preparing to commit or committing a terrorist act commits an offence, and is liable, on conviction, to imprisonment for a term not exceeding twenty years.

Section 30 appears in full above. For full effect, here is everything that was added.

64. The Prevention of Terrorism Act is amended by inserting the following new sections immediately after section 30—

Publication of offending material.
30A. (1) 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 terrorism commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years.

(2) For purposes of subsection (1), a statement is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism if— (a) the circumstances and manner of the publications are such that it can reasonably be inferred that it was so intended; or (b) the intention is apparent from the contents of the statement.

(3) For purposes of this section, it is irrelevant whether any person is in fact encouraged or induced to commit or prepare to commit an act of terrorism.

30B. (1) A person who knowingly—
(a) attends training or receives instructions at any place, whether in Kenya or outside Kenya; or
(b) receives instruction or training on the use or handling of weapons, that is wholly or partly intended for purposes connected with the commission or preparation for the commission of terrorist acts, commits an offence and is liable on conviction to imprisonment for a term not less than ten years.

(2) For purposes of subsection (1), it is irrelevant whether—
(a) the person in fact receives the training; or
(b) the instruction is provided for particular acts of terrorism.

Presumption of travelling to a country for purposes of being trained as a terrorist.
30C. (1) A person who travels to a country designated by the Cabinet Secretary to be a terrorist training country without passing through designated immigration entry or exit points shall be presumed to have travelled to that country to receive training in terrorism.

2) Despite subsection (1), a person who ordinarily resides in Kenya within an area bordering a designated country is exempt from the provisions of subsection (1).

(3) For the purposes of this section, the Cabinet Secretary may, through regulations, designate any country to be a terrorist training country.

30D. A person who is not a Kenyan citizen who enters or passes through Kenya for purposes of engaging in terrorist activities in Kenya or elsewhere commits an offence and shall on conviction, be liable to imprisonment for a term not exceeding thirty years.

30E. A person who aids or abets the commission of an offence under this Act commits an offence and shall be liable on conviction to a term of imprisonment for a term not exceeding twenty years.

30F. (1) Any person who, without authorization from the National Police Service, broadcasts any information which undermines investigations or security operations relating to terrorism commits an offence and is liable on conviction to a term of imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings, or both.

(2) A person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a period not exceed three years or to a fine of five million shillings, or both.

(3) Notwithstanding subsection (2) any person may publish or broadcast factual information of a general nature to the public.
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Observations
Ramping up fines affects mostly the poor and working class—those most likely to experience the full effects of the development imaginary as it destroys homes and businesses. Those most likely to show up to public protests because the state’s repression is not imaginary. Those most likely not to have the resource to go into exile.

Activism has been transformed into a project for the elite: the independently wealthy and the well connected.

Simultaneously, everyday life has been transformed for many people: the fines for breaking curfew restrict many residents of Kenya to their homes when curfew is announced. One notes that when the previous elections were being contested, the state told Kenyans to “stay home” and “watch TV,” or something similar. As I have written elsewhere, part of the state’s goal has been to control who may appear in public space, who may claim public space, and how.

The fines levied for losing or mutilating mandatory national identification cards are punitive and unfair. The new fines under the Traffic Act are punitive and unfair.

One also wants to point out that those who invaded Kenya are well funded: whether it’s the terrorists who could afford to rent space at Westgate Mall or the cyber terrorists who could afford to rent three houses in the very expensive Runda.

Indeed, one could argue that these fines are directed toward controlling Kenyans. Making Kenyans fearful and docile. And keeping us very broke.
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2. Refugees

Here is the entirety of the legislation that changes the Refugees Act

45. Section 11 of the Refugees Act is amended in subsection (1) by deleting the words ?or in any case within thirty days after his entry.

46. Section 12 of the Refugees Act is a amended by inserting the following new subsection immediately after subsection (2)—

(3) Every person who has applied for recognition of his status as a refugee and every member of his family shall remain in the designated refugee camp until the processing of their status is concluded.

47. Section 14 of the Refugees Act is amended by inserting the following new paragraph immediately after paragraph (b) —
(c) not leave the designated refugee camp without the permission of the Refugee Camp Officer.

48. The Refugees Act is amended by inserting the following new section immediately.

Permitted number of refugees and asylum seekers in Kenya.
16A. (1) The number of refugees and asylum seekers permitted to stay in Kenya shall not exceed one hundred and fifty thousand persons.
(2) The National Assembly may vary the number of refugees or asylum seekers permitted to be in Kenya.
(3) Where the National Assembly varies the number of refugees or asylum seekers in Kenya, such a variation shall be applicable for a period not exceeding six months only.
(4) The National Assembly may review the period of variation for a further six months.

Here is what is amended:

11 (1) Any person who has entered Kenya, whether lawfully or otherwise and wishes to remain within Kenya as a refugee in terms of this Act shall make his intentions known by appearing in person before the Commissioner immediately upon his entry or, in any case, within thirty days after his entry into Kenya.

12. (1) Notwithstanding the provisions of any other law, any person who has applied under section 11 for recognition of his status as a refugee and every member of his
family, may remain in Kenya –
(a) until such person has been recognized as a refugee in terms of that section;
(b) in the event of the application of such person being rejected, until such person has had an opportunity to exhaust his right of appeal:
(c) where such person has appealed and the appeal has been unsuccessful, he shall be allowed reasonable time , not exceeding ninety days, to seek admission to a country of his choice.

(2) The Commissioner may, on application made to him by the person concerned, extend the ninety days period referred to in subsection (1) (c) if he is satisfied that there is a reasonable likelihood of the person being admitted to a country of his choice within such extended period.

14. Every refugee and asylum seeker shall –
(a) be issued with a refugee identity card or pass in the prescribed form;
and
(b) be permitted to remain in Kenya in accordance with the provisions of this Act.

16. (1) Subject to this Act, every recognized refugee and every member of his family in Kenya –
(a) shall be entitled to the rights and be subject to the obligations contained in the international conventions to which Kenya is party;
(b) shall be subject to all laws in force in Kenya.

(2) The Minister may, by notice in the Gazette, in consultation with the host community, designate places and areas in Kenya to be –
(a) transit centres for the purposes of temporarily accommodating persons who have applied for recognition as refugees or members of the refugee’s family while their applications for refugee status are being processed; or
(b) refugee camps.

(3) The designated areas provided for in subsection (2) shall be maintained and managed in an environmentally sound manner.
(4) Subject to this Act, every refugee and member of his family in Kenya shall, in respect of wage-earning employment, be subject to the same restrictions as are imposed on persons who are not citizens of Kenya.

The new restrictions distinguish between refugees and non-refugees. Refugees are to be contained and monitored, their movements controlled, their state one of constant humiliation. If the original Refugees Act sought to give refugees some autonomy and dignity, the amendments emphasize the refugee’s status as dispossessed subject.
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3. Rights and Freedoms

Here’s the Kenyan constitution

Chapter 4: The Bill of Rights

19. (1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.

(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.

(3) The rights and fundamental freedoms in the Bill of Rights—
(a) belong to each individual and are not granted by the State;
(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and
(c) are subject only to the limitations contemplated in this Constitution.

Security Act: Limitations

The right to privacy under Article 31 of the Constitution shall be limited under this section for the purpose of intercepting communication directly relevant in the detecting, deterring and disrupting terrorism.

The freedom of movement and residence under Article 39 of the Constitution shall be limited as specified under this section for the purposes of limiting the movement of persons under a lawful police supervision order.

The freedom of expression and the freedom of the media under Articles 33 and 34 of the Constitution shall be limited as specified under this section for the purposes of limiting the publication or distribution of material likely to cause public alarm, incitement to violence or disturb public peace.

Kenya’s lawyers, the Attorney General and the Solicitor General, have insisted that rights and freedoms are not absolute. They have insisted that these should be restricted for Kenya’s security.

Finally, here is the constitution on National Security:

238. (1) National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests.

(2) The national security of Kenya shall be promoted and guaranteed in accordance with the following principles––
(a) national security is subject to the authority of this Constitution and Parliament;
(b) national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;
(c) in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya.
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Closing Thoughts
I have offered little analysis here.

My task has been to try to make as explicit as possible some changes enacted by the new legislation. I note the everyday effects of this legislation on a range of people—drivers, ID seekers, those under curfew, and refugees—because it’s important to see how new restrictions affect diverse groups of people.

I have little brainspace to speculate about the afterlife of this legislation.

How it was passed—hastily, with little time for public participation—inspires little hope about future legislative processes.