Punitive lawfare is counterproductive

AI generated image of young men in courts

This week, several boda boda riders, fishermen, politicians, and security officers among others were charged in Kenya’s counterterrorism Kahawa Law Courts. The diverse group of people were arrested during the June-July protests. On Wednesday, the Supreme Council of Muslims (SUPKEM) also released its report on how the criminal justice system responds to religious extremism. While these two events may seem unrelated, SUPKEM’s findings shed light on a worrying trend, the growing use of harsh legal measures to silence dissent.

Forty-three of the youth charged in three separate cases of alleged terrorism were arraigned in Kahawa Law Court on Wednesday. Among them are the Mawego 8, the suspects arrested for the arson attack on Mawego Police Station in Homa Bay during the funeral of Albert Ojwang’. The eight young Kenyan boda boda riders and fishermen denied these charges and were released on a cash bail of Sh 50,000. The amount being too high for them or their families to raise, their lawyers have filed for revision while they wait in detention.

One day later, former army and police officers Patrick Osoi and Jackson “@CopShakur” Kuria were charged with preparing to commit a felony and possessing a firearm. The two are self-proclaimed members of the newly established Fighting Brutality and Impunity (FBI) lobby group. They have been actively condemning extrajudicial killings, enforced disappearances and police brutality on social media platforms for several weeks.

Jackson Kuria was arrested while attending Osoi’s hearing within the court compound. They two have been detained until Principal Magistrate Richard Koech rules on their bail application next week. That two security officers have openly opposed the rise in police brutality over the past year is significant. While it may have been expected, it is causing serious concern among top security officials.

Terrorism charges and applications for pre-trial detention for up to fourteen days is a clear strategy the Directorate of Criminal Investigations is following in the cases. Over the month of August, the cases will be heard and eventually lead to acquittals or convictions.

Released this week, the new SUPKEM report on how Kenya’s justice system handles religious extremism is timely and revealing. It emerges from their ongoing Joint Initiative for Strategic Religious Action (JISRA) programme. Around the world, countries like India and France are using citizenship laws to target Muslims or control Islamic practices more strictly. Kenya has a similar history. During colonial times, communities like the Nubians, coastal Arabs, and Somali Muslims faced discrimination and were often denied citizenship. Even after independence, many Muslims living on our northern and eastern borders have been treated as second-class citizens in a country where Christianity is dominant. 

Interviewing 500 men and women, the study found that while poverty and lack of formal education pushes people toward violent extremism, they are not the main reasons. Surprisingly, religion, money, or ethnicity are not the strongest drivers either. The biggest reason people turn to violence is because they feel mistreated by the government, police and security forces. When people lose trust and feel angry about perceived injustice, they are more likely to join violent groups and hurt others.

The study details the circumstances leading up to the extra-judicial killing of twenty-three victims in 2020. The men came from Mombasa, Kwale, Lamu, Kilifi, Makueni and Nairobi counties. While the specific details differ, the pattern of unidentified men mounting surveillance, raiding homes, mosques or residential neighborhoods, extracting their victim before killing and dumping their bodies is similar.

The report argues that these actions were made possible by the infamous Security Laws (Amendment) Act (2014) which gave sweeping powers to the National Intelligence Services and counterterrorism agencies. Under the amendments, NIS officers can search, seize and detain suspects, undertake any covert operation or neutralize any threat, the Director General feels is necessary to preserve national security.

The amendments also amended the Prevention of Terrorism Act by inserting clauses that criminalise those who advocate, glorify or facilitate a terrorist act, extended detention to 360 days and removed several safeguards critical for a fair trial under our constitution.

Although the SUPKEM study focuses on Islam and Muslims, it’s main finding that current laws are harsh and prone to abuse may also apply to those arrested during the June-July protests. If punitive lawfare is ultimately counterproductive, is it also time to re-look at these two laws with the recent past in mind?

This opinion was also published in the Saturday Standard, 2 August 2025.

For more on the SUPKEM JISRA programme see here