Protesters confront police over Terror Law passed by Kenyan Parliament, Dec. 2014. Demotix/Reporter#34145. All rights reserved.On 18 December 2014, the Parliament of Kenya passed the Security Act Law. The law, backed by President Uhuru Kenyatta includes a string of anti-terrorism measures, some of which potentially have a significant effect on the media’s ability to collect and disseminate information. On 2 January 2015, the High Court suspended controversial provisions in the law pending a full examination of the legislation.
Impact of restrictions on the work of journalists
Section 61 of the Law amends the Prevention and Terrorism Act (PTA) and expands restrictions to freedom of expression when it comes to the advocacy, promotion, advice and facilitation of terrorism. The offence is punishable by a term not exceeding 20 years. The new section criminalises anyone who publishes or utters a statement that is likely to be understood as encouraging or inducing another person to commit an act of terrorism. While Section 30 A (2) offers some guidance as to what might constitute a statement that is likely to be understood as directly and indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism, the law remains broad and does not address the issue of journalists reporting on terrorism. In addition, the new section 30A (3) specifies that the law does not require a crime to have been attempted or committed.
The vaguely defined provisions risk being used to limit the speech of journalists working on terrorism-related issues. Of primary concern is the problem of defining what is to be prohibited. Does a journalist reporting statements made during an interview encourage terrorism? Can a journalist reporting on the causes of terrorism be perceived as advocating for terrorism? Does a report providing information about the training of jihadists in East Africa provide advice to Kenyans who would like to commit an act of terrorism? As such, the measures risk deterring journalists from covering terrorism-related topics and may have a significant effect on the quality of public debate.
Additional provisions relating to the interception of communication and other forms of telecommunications surveillance are of particular interest to journalists and media houses. Section 56 of the Act, which amends the National Intelligence Service Act, gives broad powers to the Director General to authorise covert surveillance, without limiting the use of powers against journalists. Indeed under the new section, the Director General can authorise covert operations where he has reasonable grounds to believe that such an operation is necessary to enable the Service to investigate or deal with any threat to national security or the performance of any of its functions. Among other things, the written authorisation issued by the Director General may authorise any member of the service to: (i) obtain any information, material, record, document or thing for the purpose of the operation; (ii) monitor communication; (iii) install, maintain or remove anything; (iv) do anything considered necessary to preserve national security. Such measures must be specific and are valid for 180 days. In making the decision, the Director-General is only subject to guidelines approved in Council.
This section makes it possible for security forces to access the phone and data records of journalists and track down journalist sources without the journalist’s knowledge and without the necessary safeguard of judicial oversight. A direct consequence of this section, is that journalists are no longer able to guarantee confidentiality to sources.
Lawfulness of restrictions under domestic and international law
In effect, the Security Law Act has expanded restrictions to freedom of expression to new areas and permitted state interference with the media in certain circumstances.
The restrictions also contravene Kenya’s international obligations. Of primary importance is article 19 of the International Covenant on Civil and Political Rights (ICCPR) that requires signing states to adopt a proportional approach to restriction on freedom of expression. To comply with Article19 (3) states should satisfy a three-part test. First the restriction imposed must be provided by law which is clear and accessible to everyone. Further, it must be proven as necessary and legitimate to protect the rights or reputation of others; national security or public order, public health or morals. Finally, it must be proven as the least restrictive and proportionate means to achieve the purported aim and to conform to the strict test of necessity and proportionality.
As mentioned above, many provisions in the law are too broad and do not allow journalists and media houses to understand what is permissible in matters related to national security and terrorism.
Moreover, the Security Law Act does not conform to the strict test of necessity and proportionality. The broad surveillance powers given the General Director risk undermining the essence of freedom of expression and as such are not compatible with article 19 (3). Journalists’ sources are crucial to freedom of expression. By failing to protect journalists’ sources and confidential information the Security Law Act will limit the capacity of journalists to have access to unauthorised sources and as a result will limit the capacity of people to have access to independent information.
While restrictions on freedom of expression and freedom of the media might be needed to address the challenge raised by the recent surge of terrorist attacks, the measures provided by the Security Law Act do not comply with Kenya’s domestic and international obligations.
Moreover, by limiting the capacity of journalists to investigate and report on terrorism-related issues there is a risk that security forces that have been conferred overarching powers will no longer be accountable to the public. Kenyan forces have been heavily criticised by Kenyan and international human rights organisations for the way they responded to the rise of terrorism. In its latest report Human Rights Watch accuses Kenyan authorities of extra-judicial killings, arbitrary detentions and torture by security forces. In a recent report aired by Al-Jazeera, members of the Anti-Terrorism Police Unit (ATPU) admitted participating in extrajudicial killings and the forced disappearance of suspects. The lack of accountability and oversight that might ensue from the implementation of the Security Law Act can only contribute to this increase of human rights abuses.