Civil society organisations Monday tabled a list of six contentious clauses they want Parliament to remove from the proposed security laws at the centre of the latest war of words between President Uhuru Kenyatta’s government and the opposition.
The Kenya National Commission on Human Rights (KNCHR) and ten other civic groups told a parliamentary committee, during public hearings, that the proposed laws are repugnant because they infringe on the constitutional provisions in the Bill of Rights.
The rights groups urged Parliament to be cautious in its handling of the Security Laws (Amendment) Bill, 2014, saying some of the proposed changes are likely to return Kenya to the dark past of detention without trial.
“We have six key areas that the commission and 12 other stakeholders want amended to ensure that the constitutionally guaranteed rights are protected,” George Morara, the KNCHR vice chairperson, told the National Assembly committee on Administration and National Security.
The committee, chaired by Tiaty MP Asman Kamama, is receiving public input into the proposed legislation as required by law.
The National Assembly is expected to pass the Bill during its third reading on Thursday when a special session has been called to approve the nomination of Kajiado Central MP Joseph Nkaissery as Interior secretary.
The House will also pass the names of four nominees to the Constituencies Development Fund (CDF) board members.
While submitting memoranda to the committee, Katiba Institute’s Yash Pal Ghai warned that the Bill has the potential of reversing the gains made in the constitution.
“The amendments in this Bill are fundamental. It is very hard to deal with a Bill that amends 22 different Acts of Parliament. Even lawyers have problems and therefore we need alot of time to discuss each of the changes proposed,’’ he said.
The constitutional expert and the commission agreed on the need for tighter security laws to contain runaway insecurity, but warned that such laws should not stifle fundamental human rights.
“We are equally concerned about rampant cases of insecurity. We released a report recently on the status of insecurity from 2010 when the Constitution was promulgated. We are concerned on matters of security and it is our intention that all Kenyans remain secure and it is the government’s sole responsibility to keep the country safe,” Mr Morara said.
He added that the commission was concerned about the method that the government is proposing to keep the country secure.
‘‘Some of the proposals will fundamentally alter constitutional provisions and infringe on human rights,’’ he said. Prof Ghai called for caution, noting that experiences from other countries with similar security laws showed that human rights of citizens have been violated.
“Although these provisions are seen as temporary and applying to a minority group, the Bill fundamentally attacks the principals of justice.
Criminal processes will be threatened if the Bill is approved. Kenyans fought hard to make the Constitution yet the Bill erodes the gains,” he said, pointing to sections that fundamentally shift the responsibilities of State organs from Parliament and Judiciary to the Executive.
“The Executive is given enormous discretionary powers that will fundamentally change the norm or constitutional requirements of separation of powers. If the Bill goes through, separation of powers will be eroded significantly,” he said.
The media also opposed sections of the proposed law, arguing that they infringe on the right of the public to be informed on matters of public concern, including terrorist acts and threats as well as the response to such acts by the state and international organizations.
KNCHR commissioner Wakonyo Waruhiu said the Constitution must remain supreme, the people sovereign and Kenyans must have fundamental human rights.
She said access to justice would be curtailed if clauses 18(4) (c), 19 and 96 of the proposed legislation are not amended to ensure that detained persons are given information on what they have been arrested for.
The rights commission also took issue with the capping of the number of refugees at 150,000, saying it goes against the refugee convention that Kenya has signed.
Henry Maina of Article 19, a freedom of media organisation, said the Bill as drafted significantly curtails freedom of assembly and association and the freedom of the media.
He said Clauses 4, 5, 7, 107 and 108 attempt to amend Article 37 of the Constitution and thereby “give unfettered powers to the Cabinet secretary to impose restrictions on what time place and meetings can take place.
Sections 15, 66, 72, 73, 75 and 80 try to amend the Penal Code, but this must be aligned to Article 34(2) and 35 of the Constitution,” he said.
He added that police must not be allowed to exercise control over what is published or broadcasted, saying Article 34(5) of the supreme law allows Parliament to regulate broadcasting.