The Prevention of Terrorism Bill, 2012 is at an advanced stage in the parliamentary process that is expected to enact it into law. By the first week of August, the Bill had already gone through the First Reading in the National Assembly, and had been presented to the parliamentary departmental committee on administration and national security for scrutiny before taking it to the next level in the legislative process.
While in the hands of the committee, the Bill was required to undergo a very important process— public access and participation pursuant to Article 118 of the constitution. Article 118 enjoins Parliament to conduct its business in an open and transparent manner by holding its sittings and those of its committees in public and facilitating public participation and involvement in legislative matters.
In this regard, an August 31 press notification issued by the National Assembly called upon interested groups and the general public to present their views on the anti terrorism bill by the end of business on September 4, 2012— meaning that the public had only four days to prepare memoranda and submit them to the committee.
Whereas it is important for Parliament to dispatch its legislative agenda with speed, it is easy for one to notice that the time allocated for public participation, especially in view of the Prevention of Terrorism Bill, was too little for any group or individual to have prepared meaningful memoranda on this sensitive proposed legislation.
There is no doubt that makers of our constitution framed Article 118 to allow public participation in order to ensure that laws made by our legislators also reflect the wishes of the people who are governed by those laws. In essence, makers of the constitution intended to ensure that the law serves the people and not the people serving the law.
In this regard, the question that arises in view of the anti terrorism bill is— what will be the fate of a law that did not get adequate public participation? The answer is simple and straight— the law will be viewed with suspension and, to the extreme, receive stiff resistance from a skeptical public. If this could be the fate of the anti-terrorism bill, does it justify a review of the time allocated for public participation? The answer is; yes.
Indeed, terrorism is a very complex and emotional issue and that is why previous attempts to introduce a law to fight terrorism in Kenya have always generated controversy. In the first year of the Kibaki administration, the Suppression of Terrorism Bill 2003 generated a lot of controversy leading to its suspension and eventual discarding. Muslims were the ones who, particularly, voiced opposition to the Bill because it contained provisions, which if passed, would have encouraged wholesale condemnation of communities, organizations and families as terrorists.
It is also important to note that Muslims opposed the anti-terrorism bill in 2003 because they felt they were the specific target of the punitive provisions contained there-in. Besides, the bill was also introduced at a time when the environment was poisoned with emotions resulting from the war the United States government had launched against global terrorism— characterized by the invasion of Iraq and Afghanistan.
It was, therefore, prudent to suspend the anti-terrorism bill then with a promise to re-introduce it at a time of sobriety. This year, when the country has a new constitution, seemed to be the best time to re-introduce the anti-terrorism bill because the new supreme law takes care of the fears Muslims have always expressed over attempts to enact legislation to fight terrorism.
Provisions of Article 118 are some of the constitutional safeguards that Muslims had hoped to use to ensure they have their say in the proposed legislation and that no constitutionally guaranteed rights are violated. However, given the little time provided for public participation, there is cause to worry that some mischief may be allowed to skulk through the net of legislative vigilance in the name of speeding up the legislative agenda.
Besides, the tensions that still prevail in the coastal town of Mombasa and its environs have destructed very many interested parties who would have liked to present their views on this Bill. There is also the misguided thinking that only Muslims should worry about the anti-terrorism bill.
But a careful analysis of some provisions of this bill should send all Kenyans, Muslim or non-Muslim, jumping out of their skins. For example, Part IV of the proposed legislation which deals with investigation of offences appears to give a police officer of any rank unfettered discretion to arrest and detain any person the officer in question believes to have committed or is committing an offence under the Act.
Whereas the bill speaks of “reasonable grounds” as the basis upon which a police officer can arrest and detain a person believed to have committed is committing an offence under the Act, the proposed law is very vague on what constitutes ‘reasonable grounds.’ Such a provision can be misused by security agents to harass anyone—Muslim or non-Muslim.
In fact, it can be misused to settle scores in political competition the way anti-terrorism provisions have been used against opposition politicians in Uganda and Rwanda. These are, therefore, the kind of issues on which the public should be given sufficient time to have discussions around and present meaningful views on, such that when the bill is finally enacted into law, the people are in agreement on what it means to fight terrorism.
In this regard, the parliamentary committee dealing with this Bill may have to consider extending the time within which interested parties can submit their views on how best to fight terrorism. And who knows, some people could have very good ideas that would go a long way in dealing with this menace in a more effective manner.
The writer is the CEO of Kenya Muslim Youth Alliance and Deputy Secretary General of the Supreme Council of Kenya Muslims (SUPKEM).