GOOD GUYS GAGGED, BAD GUYS WIN

Gestapo-like laws will impede war on corruption and terror

It looks like the authorities are getting desperate.

In Summary

Bill seeks to turn lawyers into spies—compelling them to snoop into the financial transactions of their clients.

• Since radicalisation messages are passed through free speech, counter-messages should also be passed across through free speech.

DPP Noordin Haji and DCI George Kinoti after appearing before the Senate Justice and Legal affairs committee on August 29 last year.
CRIME FIGHTERS: DPP Noordin Haji and DCI George Kinoti after appearing before the Senate Justice and Legal affairs committee on August 29 last year.
Image: FILE

Today Kenya faces many tough challenges – corruption and terrorism have proved to pose a monumental threat.

So far, we have seen commendable efforts by various state agencies to fight corruption and terrorism. However, it looks like the authorities are getting desperate and this desperation is manifested in some of the laws that the government seeks to pass.

Every Kenyan of good conscience is required to support the government’s fight against corruption and terrorism but some of the laws that the government seeks to pass are outrageous and unacceptable in a democratic society like ours.

 

The first outrageous law that the government is pushing through in the name of fighting corruption is the Finance Bill 2019, which was proposed by the Cabinet Secretary for the National Treasury, Henry Rotich, during his June 2019 budget speech.

Through the Finance Bill 2019, the State seeks to amend sections 48 of the Proceeds of Crime and Anti-Money Laundering Act to compel lawyers to report to the authorities the cash they handle on behalf of their clients. By so doing, the proposed law seeks to designate lawyers, notaries and other independent legal professionals amongst reporting entities to whom rules on anti-money laundering and combating the financing of terrorism shall apply.

LAWYERS AS SPIES

In essence, this law seeks to turn lawyers into spies—compelling the lawyers to snoop into the financial transactions of their very own clients and report to the police anything suspicious in those transactions. According to the National Treasury and Directorate of Criminal Investigations, this legislation is necessary because some individuals and firms have used corruptly-acquired money to buy proprieties through lawyers to keep detectives away.

Sincerely speaking, how do we expect teachers and parents to take up a role that even the security services themselves find difficult despite their mandate, resources and expertise? This proposed law seeks to transfer accountability for radicalisation to parents, school administrators and teachers.

But the lawyers, led by city lawyer Prof Tom Ojienda, have objected to the enactment of the Finance Bill 2019 as it seeks to turn lawyers into spies for the state.

“This proposed law… poses a real threat to the very existence of the legal profession as we know it,” Prof Ojienda said.

One of the hallmarks of the legal profession is the principle of attorney/client confidentiality, which protects lawyers from disclosing information given to them in confidence by their clients in the course of rendering legal services. Without this principle, no person will approach a lawyer to seek legal services if they are likely to be ensnared.

 

With regard to terrorism, the state has come up with another outrageous legislative proposal in the form of the Prevention of Terrorism (Amendment) Bill No 20 of 2018. One of the proposals of this Bill is to compel school administrators, teachers and parents to spy and pass information to the anti-terrorism police agencies about any form of radicalisation of young people that may take place in their institutions or homes. This Gestapo policy seeks to turn teachers and parents into intelligence gathering agents for the state, something they are ill-equipped to do.

LIMITS FREE SPEECH

Sincerely speaking, how do we expect teachers and parents to take up a role that even the security services themselves find difficult despite their mandate, resources and expertise? This proposed law seeks to transfer accountability for radicalisation to parents, school administrators and teachers.

The irony of the proposed law is that it limits the avenues through which the parents and teachers can acquire the knowledge and skills to deal with radicalisation by designating the National Counter Terrorism Centre as the approving and reporting institution for all Community Based Organisations and Non-Governmental Organisations engaged in countering violent extremism. This provision is outrageous since it limits the organisations that can engage in community outreach and counter-messaging against radicalisation.

Since radicalisation messages are passed through free speech, counter-messages should also be passed across through free speech. But the Bill seeks to limit free speech on the part of those who engage in countering violent extremist messages by requiring them to seek registration and approval of NCTC in order to counter the extremists. In essence, this provision seeks to gag the good guys and allow the bad guys to do pass their harmful message unhindered.

For example, if a religious leader wants to deliver a sermon at the place of worship and implore the youth to embrace peace, would he have to notify and seek the approval of the NCTC first before delivering that sermon? What would happen if he delivered the sermon without NTCTC’s approval?

The state should sober up and abandon these retrogressive amendments to the Prevention of Terrorism Act and instead engage anti-radicalisation stakeholders constructively.

The writer is the Deputy Chairman of the Supreme Council of Kenya Muslims (Supkem).