Applying anti-terrorism laws to manage public dissent is dangerous

With close to 1,500 people facing charges of terrorism, murder, robbery with violence, sexual assault and malicious damage, you would be forgiven for thinking Kenya is at war with itself. The last two weeks have seen a shift in police focus from public order and crime to the unprecedented use of anti-terror laws to suppress civil protests. What are the implications of looking at protests, demonstrations and public order through the lens of counter-terrorism?

The Interior Cabinet Secretary’s speech on Monday outlined in detail the deaths, injuries, destruction of property and disruption of services. He also informed the nation that 71 people had been arrested by the Anti-Terrorism Police Unit and were being prosecuted by the Office of the Director of Public Prosecutions for acts of terrorism.

The Prevention of Terrorism Act (POTA) was enacted in 2012 to respond to escalating threats from al-Qaeda and al-Shabaab, following mass attacks in Nairobi (1998), Mombasa (2002) and northeastern Kenya as well as a growing international consensus on the need to criminalize terrorism. A dedicated Anti-Terrorism Police Unit (ATPU) was established within the Directorate of Criminal Investigations to prevent, investigate and respond and the National Counter Terrorism Centre (NCTC) was established to coordinate intelligence, law enforcement, and policy efforts.

For the last decade, POTA, ATPU and NCTC have been mandated with the highly risky task of protecting Kenya from external enemies and their local allies. Some of the successes have included stopping acts of terrorism, rescuing hostages and responding to incidents like the 2019 DusitD2 complex attack. Close to 1,000 people have been killed or injured in acts of terrorism since 1998. Last year alone, 107 human beings, nearly twice the number of protesters (65), were killed in Mandera, Garissa, Lamu and Wajir.

The Unit has also faced serious credible allegations of enforced disappearances, extra-judicial killings, and the lack of public oversight and accountability. Until recently, the law has not been used to suppress civil protests or to manage public order. Terrorism is simply a grave matter.

This week, several individuals were charged with terrorism, not arson, which is covered under Section 332 of the Penal Code, following investigations by the Directorate of Criminal Investigations and charges filed by the Office of the Director of Public Prosecutions (ODPP). 25 have been accused of burning down the Kikuyu Law Courts and government offices, and 10 have been charged with damaging the Matuu police station. 38 face charges in the Kahawa Law Courts in the case of the attack on the Mawego Police Station, 300 kilometres away.

So far, bail amounts have ranged widely from Sh 30,000 to Sh 300,000. On Thursday, Law Society of Kenya advocates managed to secure revised bail terms for the Nanyuki protesters, down from Sh 50,000 to Sh 10,000. Given that many of the remandees come from humble backgrounds, excessive bail terms are a recipe for extended periods of pre-trial detention. It is also a recipe for deeper resentment with the legal system and radicalization if we draw lessons from that abortive 2014 Operation Eastleigh Sanitisation that profiled Somalis as potential terrorists.

While data is sketchy, legal historians would place the rate of convictions at lower than thirty per cent. The threshold of evidence for convictions is high, and the complexity of proving the case against a suspect can take between 2 and 5 years. Looking at the cases that have come before the courts so far, some are now speculating that investigating and prosecutorial agencies may have overreached themselves and may face their greatest test of public confidence and trust.

By resorting to terrorism charges to manage public order challenges, the government risks emulating the troubling practices of our neighbours Uganda, Tanzania, and South Sudan, where political and civil dissent is repeatedly criminalized. The approach could also strain Kenya’s relationships with international development partners. It could potentially jeopardize US$ 380 million in funding for counterterrorism efforts critical for our national and regional security.

Three years ago, the Office of the Director of Public Prosecutions introduced the Inter-Agency Guidelines on Cooperation and Collaboration in the Investigation and Prosecution of Terrorism and Terrorism Financing. Crafted by several state and non-state agencies, the guidelines sought to improve coordination, ensure timely arrests and evidence-based charges, as well as protect rights and public security.

Observing this month’s arrests, the charge sheets and current arguments of the prosecutors, it remains to be seen whether these cases will hold the rigour of our laws or these recent guidelines.

Following this article, the state withdrew terrorism and money laundering charges against Boniface Mwangi. Charges against 65 people involved in the July 7 protests remain and are being argued in courts.