Advertisement

Supreme Court actually retreated on security law

Saturday February 28 2015

This past week, the Supreme Court delivered its judgment on the Security Laws (Amendment) Act 19 of 2014. The courtroom was full.

On the reading of the summary, those present burst into cheers, singing the protest anthem Mapambano. Not that anybody not present could watch it all on television, except on international news channels. But that is another story for another day.

In short, the judgment was declared a victory.

First, it held that Section 12, concerning the publication or distribution of “insulting, threatening or inciting” material as well as images of dead or injured persons and the publication or broadcasting of information that “undermines” investigations or special operations, was an unjustifiable affront to the rights to freedom of expression and freedom of the media. Our ability to follow and critique criminal investigations or the conduct of special operations through investigative journalism remains.

Second, it held too that Section 16, enabling the non-disclosure of evidence to accused persons, was unconstitutional, violating the rights related to fair trial.

Finally, it held that the cap on the number of refugees allowed in this country was not only unconstitutional but a violation of international law and the principle of non-refoulement.

Advertisement

That is the good news. What may have been overlooked in the hullabaloo is the bad news.

Section 25, concerning the ability of the Director of Immigration to withdraw registration as a citizen and accompanying identification documents for, among other reasons, “any other justifiable cause,” remains intact. Citizenship documents are the bedrock upon which many other rights — to employment, to housing, to movement in and out of the country, to public participation and so on — rest. This is alarming.

Sections 4 and 5, concerning the ability of the Cabinet Secretary of Internal Security to designate, on the advice of the Inspector-General of Police, the times and venues for public protests — demonstrations, marches and so on — were stated to be constitutional. This is a disturbing retreat on the rights to the freedoms of assembly and association.

Sections 56 and 69, enabling surveillance, search and seizure in the context of covert special operations and interception of communications. The Supreme Court deemed that neither of these violated the right to privacy.

Finally, Sections 15 and 21 were held to be constitutional. Section 15 enables the extension of pre-charge detention to up to 90 days. Which is better than the 360 days initially proposed by parliament but still far more than the constitutional limit, even if judicial safeguards were introduced.

Section 21 enables the non-release on bail of accused persons for up to 14 days on indication by the Director of Public Prosecutions that the office is appealing the granting of bail.

The Supreme Court held that the mandatory extension to 14 days was unconstitutional. But then allowed for the possibility of the extension.

So yes, we should celebrate that the Supreme Court dealt with some of the most egregious parts of the Act. But we should also be aware that it left many equally egregious parts intact. One step forward and two steps back.

L. Muthoni Wanyeki is Amnesty International’s regional director for East Africa

Advertisement