These are no ordinary times. The recent heinous massacre at Garissa University College, epitomises the whirlwinds of terrorism that have been gradually brewing below our intelligence radar.
Seemingly the sophisticated execution of the clandestine act implied some level of communal culpability, which has been the talk of the nation. Such talk has become toxic with vitriolic public outbursts directed at the community leaders and government’s failure to prevent it.
Kenya’s active regional role in the global war on terror has pushed it at epicentre of frequent small-scale attacks, which has intensified in term of sophistication and the scope of the collateral damage.
These attacks have been perpetrated by foreign nationals affiliated to the Al-Qaeda terrorist group networks.
One affiliate, popularly known as Al- Shabaab, continues to take advantage of Kenya’s strategic geographical position with its porous boundaries and it inadequate and ineffective law enforcement capacity.
Kenya’s commitments to combat threat terrorism is embodied the Prevention of Terrorism Act of 2013 and the recent controversial Security Law (amendment) Act of 2014.
The Act explicitly leans heavily on criminal incapacitation without fine driven by deterrence impulse. Most of the offences under the Act commute criminal liability of incarceration depending on the type of the offence.
The enactment of the amendment act was precipitated by wave of terrorists attack in the year 2014, which had become a national security issue. The statute sought to amend provisions of twenty two other acts of parliament dealing with matters of national security.
However the constitutionality of these amendment were challenged with some amendments declared unconstitutional thereafter.
This aggressive legislative agenda notwithstanding its implementation is being pursued in a policy vacuum. Given the nature, the goal and magnitude of terror crimes like Garissa massacre, it calls for a counter-terrorism policy that incorporates some aspects of communal liability.
Such a policy should focus on incentives and punishment of the terrorist group as well as the individual terrorist.
It should impose strict liability on active supporters of terrorism but also the passive supporters who are in better position to deter terrorism and fail to do so.
The less obviousness of the latter case has obscured its effectiveness as a deterrent strategy to combat terrorism. Its effectiveness rests on the ability to identify community as superior and effective enforcers.
Communal liability is imposed not because of the benefits that community accrue from terrorist acts but because some community members can monitor and prevent terrorist acts more effectively.
In conclusion the heightened anxiety over the sophistication of recent terrorist acts calls for a formulation of counter-terrorism policy to guide the combat against it.
Such policy must broaden the view of terrorism as more like corporate crime and organized crime than individual crime.
In addition to the obvious policy objectives of individual incapacitation and deterrence and policy should be sufficiently innovative to account for communal culpability wherever it exist.
Such accountability incentivises the community to become quasi-enforces by monitoring and controlling its member who could be potential terrorists.
Prof Kieyah is a principal policy analyst at KIPPRA. Views expressed are personal.
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