TERRORISM AND COUNTER-TERRORISM MEASURES IN KENYA

INTRODUCTION

Since 2012, Kenya has seen an upsurge in violent terrorist attacks. The Kenyan security forces believe that the blasts are carried out by Al-Shabaab in retaliation to Operation Linda Nchi, a coordinated military mission between the Somali military, the Kenyan military, the Ethiopian military, the French military, and the United States military that began in October 2011, when troops from Kenya crossed the border into the conflict zones of Southern Somalia. The soldiers were in pursuit of Al-Shabaab militants who are alleged to have kidnapped several foreign tourists and aid workers inside Kenya.

Since the Operation Linda Nchi began, Al-Shabaab vowed retaliation against the Kenyan authorities. At the militant group's urging, a significant and increasing number of terrorist attacks in Kenya have since been carried out by local Kenyans, many of whom are recent converts to Islam. Estimates in 2012 placed the figure of Kenyan fighters at around 10% of Al-Shabaab's total forces. Referred to as the "Kenyan Mujahideen" by Al-Shabaab's core members, the converts are typically young and overzealous, poverty making them easier targets for the outfit's recruitment activities. Because the Kenyan insurgents have a different profile from the Somali and Arab militants that allows them to blend in with the general population of Kenya, they are also often harder to track. Reports suggest that Al-Shabaab is attempting to build an even more multi-ethnic generation of fighters in the larger region. According to diplomats, Muslim areas in coastal Kenya and Tanzania, such as Mombasa and Zanzibar, are also especially vulnerable for recruitment.

POLICE HANDLING OF TERRORISM

The Anti-Terrorism Police Unit headed by Boniface Mwaniki was formed to deal with terrorism in Kenya. The ATPU has of late resorted to executing terrorist suspects without arresting them for interrogation. In June 2013, police in Mombasa killed suspected terrorist masterminds Kassim Omolo and Salim Mohammed Nyiro who had been linked to Al Shabaab and a slain Al Qaeda leader wanted over the 7^th  August 1998 bombings of US embassy in Nairobi.

However, it has been found out that the rights of suspects have been infringed on due to renditions to different countries. A case in point was the rendition of Kenyans to Uganda in 2010 by ATPU.

Violations of human rights have also increased since the suspects are tortured and suffer ill-treatment while in prison after renditions.

In July 2013, the High Court of Kenya, through Judge Mumbi Ngugi awarded more than Ksh.40 million to 10 men and a woman, eight of them being Kenyan citizens, who were renditioned to other countries (Ethiopia and Somalia) against their will as security agents cracked down on terrorism. The petitioners in this case were being held in incommunicado detention for a period longer than 24 hours which was arbitrarily, unlawful and unconstitutional and in violation of their fundamental rights to the integrity, dignity and security of the person and freedom against torture, cruel, inhuman and degrading treatment or punishment guaranteed under the old Kenyan constitution Sections 70 and 74.

PROSECUTION AND ARRESTS

Elgiva Bwire Oliacha, a recent Kenyan Muslim convert, was recently arrested in connection with terrorist activities and was sentenced to life in prison after having pleaded guilty to all charges. Going by the adopted name Mohamed Seif, Oliacha reportedly smiled at cameras, stated that he harboured no regrets, and indicated that he would not appeal his sentence.

On 20^th Sep 2012 Abdimajid Yasin Mohamed, alias Hussein, was sentenced to 59 years in prison. He was charged alongside Abdi Adan alias Salman Abdi, who denied the allegations and whose case is still pending. Yasin was ordered to undergo psychiatric examination after he pleaded guilty upon arrest on 14^th September 2012; doctors found him fit to stand trial. The two suspects arrested in Eastleigh with bombs, grenades and a cache of weapons that included six suicide bombs, 12 grenades, four AK 47 rifles and 480 bullets recovered from them as police thwarted a major terror plot in Nairobi.

Police arrested a suspect, Thabit Jamaldin Yahya, following an attack at Mombasa Bella Vista bar. He is still in remand.

The Prevention of Terrorism Act 2012 and the Constitution

This Act was assented to in October 2012 by the former President Mwai Kibaki. It provides for stiffer penalties against terrorism acts. For example in Part III;-

Section 4 on commission of a terrorist act provides that one is liable to imprisonment for a term not exceeding thirty years if convicted of a terrorist attack while one will be imprisoned for life if the attack results in death of another person.

Section 5 provides that one is liable to a conviction not exceeding twenty years if he makes available any property or finances the activities of a terrorist group.

Section 6 provides that if one possesses any property which he knows is intended to be used in a terrorist act, then he is liable to imprisonment for a term not exceeding twenty years.

Section 7 provides that a person who arranges for the retention or control of terrorist property is liable to a conviction not exceeding twenty years upon conviction.

PART IV —outlines the process of investigating offences under the Act. It confers power on an officer under the Act to gather information and intercept communication upon obtaining an order of the Court in accordance with the specified procedure.

However, this is usually not followed due to execution of suspects even before proper investigations are carried out. Even when the suspects are arrested, the due process of law is not adhered to. Article 49(1) (d) of the Constitution provides for the rights of arrested persons which states that one has the right not to be compelled to make any confession or admission that could be used as evidence against him or her.

Most of the suspects are usually tortured to admit being part of a terrorist attack.

The Act also provides that rights and fundamental freedoms of person shall be limited as per Article 24 of the Constitution if it relates to;-

(a) the investigations of a terrorist act;

(b) the detection and prevention of a terrorist act; or

(c) that the enjoyment of the rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedom of others.

The rights and fundamental freedoms limited may include the right to privacy as per Article 31 of the Constitution which include;-

(i)                 a person, home or property to be searched;

(ii)                Possessions to be seized;

(iii)         Information relating to a person's family or private affairs to be required or revealed; or

(iii)             The privacy of a person's communication to be investigated intercepted or otherwise interfered with.

In conclusion, Part V of the Act confers jurisdiction on the Kenyan Courts to deal with offences committed within Kenya or outside Kenya where the offence is committed by a Kenyan or person ordinarily resident in Kenya or against a Kenyan or property owned by the Government or to compel the Government to act or refrain from a particular act.