The Security Laws (Amendment) Bill has far-reaching technology implications

The last few days have been hectic for Kenyans. We seem to agree that there is a terrorism situation that needs to be addressed, but disagree on how to go about it.

The recently published Security Laws (Amendment Bill) of 2014 is the government proposal on how to address the now-maturing terrorist threat in Kenya, but opposition politicians and human rights and civil society groups seem to think little of it.

It is difficult for Kenyans to figure out who is telling the truth and who is lying, particularly because we have a culture of not reading for ourselves, preferring to let the politicians do the reading as we align ourselves accordingly, based on our ever-fluid political-cum-tribal lines.

But isn't this the easier thing to do? Who would have the time or the need to read the 90-page security laws Bill written in legalese and designed to be passed in the shortest time possible?

And even if you had the time and energy to go through it, where would you find the Bill ?

By the time of publishing this blog, the Bill had not yet been posted on the National Assembly site or the Commission for the Implementation of the Constitution site. Yet these are some of the state agencies with the authority to disseminate such information. 

POLICE APPROVAL REQUIRED

Kenyans who wanted to read the Bill for themselves had to rely on third-party sites — often human rights, civil society or media-related sites. Mzalendo, a democracy and governance NGO, has posted the contentious Bill and a brief summary on its website.  

This simple act of freely making information available to anyone by anyone, using any means (print, radio, TV or online) is potentially under threat, however remotely this may seem to be.

As an example, Section 75 of the Bill inserts Section 30F, which refers to the prohibition from broadcasting terrorism-related content, into the Prevention of Terrorism Act. Section 30F subsection (1) states as follows:

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.

Within the context of the prevailing terrorism threats, this clause is not only relevant but seems long overdue.

Nobody who cares about Kenya’s security would want information that undermines government efforts to protect citizens from terrorists to be published.

CENSORING NEWS

You do not need to be a prophet to see where this is going. The recent media coverage of attacks at Westgate Mall, Lamu, Mandera and Kapedo, among others, are obvious examples of how the media should not cover unfolding terrorist attacks, given the above-mentioned clause. 

Essentially, it ensures that the public only consumes terror-related news that conforms to the dictates of the National Police Service.

Whereas this is contentious, it can be justified. Terrorists regularly commit heinous acts, but their intention is not in the act, but rather in the publicity surrounding it. The wider this act is broadcast, the more glory the so-called martyrs get, and the more disciples a terrorist can potentially recruit. 

What cannot be justified and is causing concern, however, is the real possibility that this clause can be abused. Given our history of good governance or lack thereof, it is not too far-fetched to imagine that other news not necessarily sensitive to national security could be potentially prohibited under this very clause.

Media censorship can easily be reintroduced through the back door. The possibility of this happening may be seen as far-fetched, but other clauses in the proposed security Bill do little to dispel fears.

INTERCEPTING COMMUNICATIONS

For example, the Inspector-General’s security of tenure is removed, making his or her selection a purely presidential affair. This is achieved by Section 97 of the proposed Bill which removes responsibility for recruiting the IG from the National Police Service Commission.

The commission is currently mandated to invite applicants and vet them, before sending shortlisted names to the President for selection and submission to Parliament for approval.

One more clause that may interest the ICT community is the provision that allows security organs to intercept communications for purposes of detecting, deterring and disrupting terrorism. Specifically, Section 80 of the Bill inserts Section 36A, which reads as follows, into the Prevention of Terrorism Act:

The National Security Organs may intercept communication for the purposes of detecting, deterring and disrupting terrorism in accordance with procedures to be prescribed by the Cabinet Secretary.

This section raises alarm in the Kenyan context because it removes the need to obtain permission from a judge in order to engage in such a privacy infringement activity. Section 36A now vests the power in the Cabinet secretary in charge of security, and allows the Kenya Defence Forces to intercept communications.

EVIDENCE THROUGH TELECONFERENCING

But all is not gloom in the proposed Bill. There seems to be consensus on Sections 36 and 37, which seek to amend the Evidence Act to provide for the admissibility of electronic and digital evidence. Whereas this was partly introduced in the Kenya Communication Act of 2009, it has now been explicitly reinforced.  

Section 36 states that a court may receive oral evidence through teleconferencing and video conferencing, and Section 37 states that in legal proceedings, electronic messages and digital material shall be admissible evidence.

In summary, the consensus seems to be that the proposed security Bill is timely and necessary. But both sides of the political divide are seemingly trying to leverage it. The government side seems to want to address security concerns while simultaneously lacing some clauses with powers that could potentially be abused.

The opposition, on the other hand, has chosen the easier path of raising the red flag without necessarily presenting clauses that would limit the abuse of the otherwise necessary security clauses. Only time will tell how this will play out in the coming days.