Legal battle in Kenya set to determine country’s surveillance future

Access Now Policy Team and Drew Mitnick contributed to this post. 

The High Court of Kenya has temporarily suspended the implementation of eight clauses of the Security Laws (Amendment) Act of 2014, which restricts the exercise of human rights in Kenya. In a challenge brought by Coalition for Reforms and Democracy and the Kenya National Commission on Human Rights, the High Court held on January 2 that portions of the law, which passed in December 2014, may “infringe upon the freedoms and fundamental rights.” These provisions will now be suspended pending a full trial. Access applauds the High Court’s decision in suspending these parts of the law and urges the Court to thoroughly consider the entire law’s human rights impact in its ultimate assessment.

The High Court’s decision may come as no surprise, given that members of Parliament physically ripped apart the bill during deliberations and protesters demonstrated in the streets during the vote. The suspension by the court signals an important recognition of the bill’s deficiencies, especially given the Court’s duty to uphold the Bill of Rights against violations or infringements. The High Court cited potential conflicts between the law and Kenya’s Constitution as well as international human rights obligations. In particular, the law threatens the right to privacy and the freedom of expression and freedom of assembly.

Amongst the suspended provisions are two clauses that Access identified as particularly pernicious. Article 56, now known as the Special Operations provision (previously “Covert Operations”) granted the National Intelligence Service broad authority to conduct warrantless searches. As we noted, “this national security provision would be nearly limitless and flies in the face of international human rights law.” The High Court also suspended changes to the Prevention of Terrorism Act that would make it illegal to issue statements, such as Tweets or Facebook Posts, “likely to be understood” as encouraging terrorism, a vague and easily-abused standard.

Despite the opposition to the law, Kenyan government officials plan to fight for immediate authority under the suspended provisions. Mere days after the suspension, Kenya’s Attorney General reportedly asked the Court of Appeal on January 6 to overturn the High Court’s decision. We now urge the Court of Appeal to reject the Attorney General’s motion and for the High Court to fully consider the human rights impact of these provisions and the law as a whole when the case comes up for review. As the Court noted, anti-terrorism laws must be effective, but they also “must pass Constitutional and legal muster.”

This article was originally published on Ephraim’s professional page on Access Now.


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