Kenya shoots itself in the foot with new security law

THE STORY IS told of how on September 11th 2001 (9/11), somewhere in Taliban-controlled Afghanistan, Al Qaeda’s leader Osama bin Laden, and the elusive leader of the Taliban Mullah Omar, sat around a television with their closest aides. Even though the Taliban had banned television this was a special occasion. They had gathered in a hideout to watch al Qaeda’s attack on the Twin Towers, Pentagon and other American symbols of power and global influence. The success of this most spectacular terrorist attack ever changed the world.


In short order, America and her allies invaded Afghanistan and deposed the Taliban. This campaign enjoyed sympathy across the globe. The invasion of Iraq in 2003 was a more dubiously justified one. However, it soon became clear that the real motive behind Osama bin Laden’s attack – first tested successfully on us and the Tanzanians when the US embassies in Nairobi and Dar were bombed in August 1998 – was to drag the US and ‘the West’ into a quagmire in Afghanistan. Iraq was a tremendous bonus. The quagmire transpired. Indeed, the Middle East continues to convulse today.

 However, as al Qaeda evolved, bin Laden and his team seemed to conjure up a more malevolent strategic objective – to force the West into a type of conflict that would cause the US to abandon some of the core values that make America the unique superpower it is. America prides itself on building a society whose core values are based around the principle of the freedom of the individual. However, Guantanamo Bay, Abu Gharib, collateral damage from drone attacks, the CIA’s systematic use of torture, and corruption in these war zones on a massive scale did much to undermine the moral standing of the US in the world. It is as an idea that extremist intolerant Islam has proven itself globally most potent and dangerous. It is heavily reliant on provoking the leadership of fear-gripped countries to respond against their own people along brittle fault-lines that may already exist, such as that between Christian and Muslim.


Travelling in the US in 2006, I was taken aback to find that the offices of all key government departments I visited now had elaborate security measures erected since 9/11. It meant you had to add 15 minutes to every appointment as a contingency for the security checks. I asked a colleague about this and he commented grimly: “Osama won the first round”.  Three weeks ago the US Senate released part of the report of its investigation into the use of torture by the CIA while prosecuting the war against terror. From all I have read, it has led to soul searching in the US about how these interventions in the Middle East have changed what the US is to its own people.

 A the end of 2014 the Jubilee majority in the Kenyan national assembly passed a security bill, which the president quickly signed into law, meant ostensibly to help deal with the security meltdown underway in Kenya and the real existential threat conjured up by al Shabaab. The final debate on Thursday 18th December was the most raucous in the history of the Kenyan parliament, with Members of the National Assembly and Senators engaging in a near brawl. The opposition CORD’s National Assembly member Millie Odhiambo was allegedly sexually assaulted while Senator Johnstone Muthama had his trousers torn apparently as Jubilee members tried throw him and fellow Senator Moses Wetangula off the gallery onto the floor of the House! Not to be outdone, opposition members splashed Deputy Speaker Joyce Laboso with water, and threw books and papers at Speaker Muturi. It was a scene that shocked, dismayed and angered Kenyans.


In truth, brawls in parliaments are commonplace in many countries around the world. The Taiwanese legislature stages some of the most impressive scraps. We Kenyans aren’t used to this extent of a loss of decorum among our leaders, and outrage at that dominated the first wave of headlines. But as realisation grew to the provisions in the new law reversing a range of personal freedoms we thought guaranteed in our new constitution, the outrage shifted.

 It has become clear that the passage of the controversial bill has caused a quiet despondency among Kenyans, distressed in part by its implications, but also by the unspoken underlying meaning of the physical confrontation by the people’s representatives in parliament. An opinion poll immediately after the scuffle showed that only 1 percent of Kenyans supported the Bill. More hardnosed Jubilee ‘strategists’ argued that, despite the unprecedented opprobria, passing it just before the Christmas break meant Kenyans would have forgotten about it after feasting during the festive season. I’m afraid they are deeply mistaken.

 The new law is hugely controversial with the majority of our most respected public intellectuals arguing that many of its provisions are so draconian they amount to a rolling back of hard-won freedoms that have taken the last 20 years to put in place. Most importantly, the Law militates against the spirit of the new Constitution and offends it technically in a host of clauses. Already there is a court challenge to its passage that attracted unprecedented interest for this time of the year. In terms of political scale the dimensions of this new law are the biggest since the Supreme Court’s controversial ruling on the election in 2013. This means much political energy will be dissipated against it in other fora as well; providing for a tumultuous start of the year.

 Indications that Jubilee has realised it may have overreached were expressed by Deputy President William Ruto who quickly cautioned the opposition against public demonstrations opposing the Security law. So it’s likely exactly what will happen.

 Prolific veteran journalist, Mohammed Warsama, has pointed out to me that in our tribalised polity and the sharp polarisation that’s been evident since the elections last year, Jubilee doesn’t have the machinery to implement an authoritarian regime of laws of the type they are dreaming about. They’ll crack heads but also find they’ll be pushing buttons and nothing happens on the other side.  He reminded me of the (apparently lack of impact of) anti-terror legislation that was passed in late 2012. Muslim leaders opposed it publicly and making articulate arguments about how its collateral damage will worsen the situation vis-à-vis terror and extremism rather than actually deal with it pragmatically.  The question is what consequences will follow the regime’s use – or attempt to use – the big stick of this new law.


The recent legislation has caused far more outrage than the 2012 law. This is primarily because of two reasons. First, as laid out,  some of its provisions appear to be aimed more at limiting the freedom of Kenyans than dealing with ‘terrorism’. This is partly explained by the second reason: many people don’t trust the Jubilee regime as far as the basic rights and freedoms of Kenyans are concerned. The rhetoric of its leadership and most ardent supporters from the very start of its campaign has made clear that democracy is somewhat of an inconvenience. Indeed, the most enthusiastic proponents and defenders of basic freedoms have been systematically demonised in every forum and platform Jubilee supporters have had available to them. This effort has been so systematic and determined, that even at this moment when Kenyans need to pull together against the real threat that terrorism poses, the mistrust and polarisation is so deep regarding the regime, and its legitimacy so questionable that too many Kenyans are willing to believe the worst motives inform the new law.  It reminds one of Psalm 7:

 Whoever is pregnant with evil

    conceives trouble and gives birth to disillusionment.

Whoever digs a hole and scoops it out

    falls into the pit they have made.

The trouble they cause recoils on them;

    their violence comes down on their own heads.”

 In contrast, recall what happened following the 1998 al Qaeda attack against the US Embassy in Nairobi. The country had just come out of a contentious general election the year before, and President Moi’s political fortunes were on a steady decline that would continue until KANU lost the next elections. However, at the moment of the Embassy attack, Moi was able to shrewdly smell the political coffee and realise that what had happened was above party politics. He visited the site of the bomb blast together with all the opposition leaders. The entire nation united together in the face of the outrage. Today, with hundreds of Kenyans killed and injured in over 100 attacks since 2012 – most of them since it assumed office, the Jubilee regime has not been able to unite the nation behind it when it comes to the war against terror. Indeed, its responses seem to have fuelled even deeper mistrust of government at every turn. This isn’t good for the fight against al Shabaab or for Kenya’s security and stability. The new security law changed the constitution by ultimately amending through the back door several of its clauses that pertain to the rights and freedoms of Kenyans. Impressively, Jubilee burnt down the fence of non-partisanship in Kenya. The grey is gone from our politics for now. Black and white rule. Unfortunately, in real life these clarities empower extremists and those with the loudest voices and those willing to use violence both conventional and unconventional.

 Equally significant, however, is this. In Transparency International’s latest Corruption Index, Kenya has slipped down the list to levels comparable to the Moi era. This is not surprising to Kenyans witnessing the sheer scale of the graft taking place all around us. However, it has implications regarding the fight against terror that should worry every citizen. It means that corruption has deeply compromised the machinery of state security. Corruption has so infected the key institutions necessary to fight terror that they seem paralysed beyond repair. Rather than deal with this, the state seems to be resorting to other means – such as extrajudicial killings meant to terrify Kenyans supposedly into not supporting al Shabaab, if a recent documentary aired on a respected international media station is to be believed; and passing laws aimed at limiting freedoms so that bad news remains buried. The regime is acting as if it has no legitimate arrows in its quiver as it goes into this fight. Al Shabaab has won the first round by getting the Security Laws (Amendment) Act passed. Its leaders must be laughing watching us shoot ourselves in the foot.

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