Kenya: National Security Under the New Constitutional Order. Threats, Responses and Strategies

 Kenya: National Security under the New Constitutional Order. Threats, Responses and Strategies (2017)

Edited by Prof. Makumi Mwagiru and Atunga Atuti O.J.

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The East African School of  Human Rights is calling for chapter contributions on a forthcoming book titled; Kenya: National Security under the New Constitutional Order. Threats, Responses and Strategies(2017)

The Idea of the Book:

The idea of the book on the above subject is borne out of the realisation that there has not been a coherent, concise and up to date reader on Kenya's national security. National security concerns have been treated as appendages of the human rights and democracy discourses rather than as an integral component of the social, economic and political developments deserving attention on their own right. As such security issues have been tucked into agendas for reform of other institutions. The closest Kenya came to having a structured discourse on security was during the Governance, Justice Law and Order (GJLOS) 'reform' process but even then the agenda was driven by government and donors. Civil society, academia and other interests was left out of the core of this process and were only consulted within the framework of a CSO-Reference Group rather than as a co-driver of the reform program. Government used the reform process to portray itself as reform minded to attract funding and to dissipate pressure from the citizenry and donors on fundamental reforms of the processes and structures of Kenya's security infrastructure. As a result the GJLOS program ended up being a 'modernization program rather than a reform process'.

With the enactment of the New Constitution, security issues were propelled to the top of the agenda of the implementation process. The implementation  of the security provisions of the Kenya Constitution 2010 has not been without challenges. These were already discernible right from the start of the constitution-making process itself.  It is not lost on Kenyans that one of the drafts released by the Government press prior to the August 2010 Referendum sneaked in a provision limiting the exercise of the Bill of Rights to 'National Security'. The implementation process has witnessed a concerted scheme to ‘amend’ the constitution in regard to national security through 'ordinary legislation' or even through Miscellaneous Amendments.

With the implementation of key sections of the Constitution coming to an end, it is an opportune moment to reflect on the constitution implementation process since 2010, the  present status and future of  security sector reforms. This book is intended for a wide audience including security analysts and scholars, students and policy makers, donors and other international actors. It will therefore seek to   follow, understand, and contribute to a range of issues on this subject  through the  themes outlined below. Sections of the book will seek to respond to the challenges of national security faced by Kenya  but also typically any other country of the same stature.

Getting Started:
This Book Project is commenced with a call for detailed (500-800 word) chapter proposals. The proposals will be reviewed on a rolling  basis in May/June (2016) and authors will be advised on their topics not later than 10th July 2016 including details on the length of their contributions. Draft Chapters must be submitted by 10th September 2016.  A Review conference will be held in Nairobi in October 2016 at which authors will present their chapters for peer review.  The Editorial process will be completed by November 15th and the Book will be released by end of December 2016 or early 2017. All chapters shall be subject to double-blind review process and some of the contributors will be enlisted as reviewers for the manuscripts. The School has commenced consultations with reputable publishers in the UK and Netherlands for the publication and distribution of the book. Details will be availed as soon as the publishing agreement concluded.

Themes:

The East Africa School of Human Rights (EASHR) has identified the following as a tentative guide on possible themes that would constitute the proposed book. Authors are however free to propose other themes which would add value to the book that are not indicated.

1. Historical Development of Kenya’s National Security Institutions
2. Legal and Ad Hoc National Security Institutions in Kenya: The Constitution’s Contribution (Context/Perspectives)
3. Kenya’s National Security and the Constitution of Kenya 2010- The Constitutional Philosophy of National Security in the 2010 Constitution
4. National Security Parameters: National-County Dichotomy including The Role of County Governments in National Security in Kenya
5. National Security and National Interest (Diplomacy, Foreign Policy, National Values and National Security)
6. National Security Architecture-(a)Legal frameworks, Institutions and Processes: National Security Policy, National Security Strategy, National Security review(s); (b) The Constitution and co-ordination of National Security.
7. New and Emerging Threats to National Security (Internal, External threats)
8. Kenya’s National Security: Global, Regional and Local nexus
9. Kenya’s National Security in the 21st Century: i) Threats/Challenges, Opportunities/Responses and Strategies, ii) Long Range Planning in National Security
   1. The Constitution and National Security Apparatus (National Security Council, National Security Advisory Council etc)
   2. After Five Years: Issues and Problems of Implementing the Constitution
10. Conclusions

Writing Style:

All manuscripts should be prepared using the 16th edition of the Chicago Manual of Style .

Datelines:

Prospective authors are requested to submit their chapter proposals and outlines to the undersigned by April 28th 2016 (23:59 EAS). A web portal with all the abstracts/outline of book chapters will be created where more information and other developments will be posted.

All correspondences:

Atunga Atuti O.J.

International Relations and National Security

Curtin University

Bentley Campus, Kent Street

Perth, Western Australia

Tel: +61470501496

Email: atunga2016@gmail.com/

j.atunga@postgrad.curtin.edu.au

Published on

https://networks.h-net.org/node/73374/announcements/114619/kenya-national-security-under-new-constitutional-order-threats

Radicalization: Delicate balance between security and Human Rights

By Atunga Atuti O.J.

Over the past several years and especially since September 11th 2001 State responses to (perceived and/or actual) threats of terrorism and National(Homeland ) Security has been one of the most defining developments in the dichotomy between human rights, national security and rule of law. State responses to these challenges has in many respects been seen to be inimical the enjoyment of human rights and fundamental freedoms around the world. This  however need not be the case.

For some time in Kenya, actors in Security and Human Rights have often viewed their work as operating in mutually exclusive terrains. Operations of security agencies have elicited reactions from human rights actors on account of (and often have been ) heavy handedness. Kenya has been confronted by a number of challenges that are of a security nature and various actors namely those in the human rights movement and security has acted in non-complimentary ways. Whereas many of the actors in the human rights movement have  existed to challenges state excesses that constrict spaces for enjoyment of human rights, the actualization of  this mandate has  essentially created a situation whereby the actions by  those in the security and human rights sectors have been implemented at cross purpose rather than in a complimentary manner. Nowhere else is this more felt than in the attempts by government agencies to address radical ideological issues of terrorism and ethnic, religious and social animosities.

 In respect to terrorism the state agencies have sought to curtail freedom of expression in attempts to crackdown platforms that proffer opportunities for spreading of perceived  radical messages. This has also been visible in cases that seek to  curtail freedom of assembly and worship in attempts to address radicalization and inculcation to violent  extremism propagated by certain religious formations. Whereas the debate on security and terrorism on one hand and freedom of expression, assembly and worship is an old one, there have been  few successful attempts to balance the enjoyment of  these freedoms and the responsibility to ensure the enjoyment of the same by others. This is an entrenched principle in many Bills of Rights. This principle posits that enjoyment of rights must be exercised with a level of responsibility to ensure that the rights  and freedoms of others are not undermined in the process of  asserting ones rights. 

Kenya in 2010, promulgated a new Constitution that is progressive in terms of protecting and promoting the rights of individuals and groups. This constitution has been hailed as one of the  most progressive texts in the world. Other than the robust provisions of the Bill of Rights, the Constitution also makes provisions on Security and provides thus that; ‘National Security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and their national interests’[Art. 238]. The Bill of Rights enjoins all persons and state organs to work to promote the full enjoyment of rights and fundamental freedoms. How then does a state agency charged with the responsibility of ensuring enjoyment of  rights ensure and censure actions that would be classified as rights and freedoms but which would compromise the enjoyment of rights and freedom by others?

 In the recent past security agencies have been dealing with cases of radicalization to involvement in violent extremism. Two arguments have been advanced; the first seeking to defend many of such ‘acts’ as falling within the gamut of enjoyment of  rights and fundamental freedoms over which state agencies must desist from interference and second,  that such actions work to negate and deter full enjoyment of rights and fundamental freedoms  by others hence state agencies have a responsibility to act to thwart possible  negative outcomes( of such actions).

There have been cases where exercise of the freedom of expression and opinion has worked to impinge on the enjoyment of rights by others or have been threats to other peoples’ rights and freedoms and in some cases these have even worked to endanger the peace, security and  a range of rights of others. How then do we balance the enjoyment of rights including the benefits of security and rule of law? How do we promote respect the fundamental tenets of freedom of expression and the right to hold and express an opinion vis a vis the protection and promotion of the right to security which is threatened by radicalized individuals bent on extremist violence? How do we promote security in an environment where individuals utilize institutions and platforms that are intended to promote rights as provided in the constitution for promoting actions that undermine the same rights?

A planned conference  in Nairobi in June 2015,  devoted to radicalization into violent extremism,  provides a rare opportunity  for the country to  the twin challenges and  develop a framework  and an action plan for  preventing  the spread of radicalizing messages in various platforms and which also  seek to entrench the full enjoyment of rights and fundamental freedoms. This on the understanding that addressing the challenges of terrorism and violent extremism requires that we live our values and not those of the enemy that seeks to destroy our.  Whenever there have been terror attacks and our security forces have acted in a manner that seemed to mete communal and collective punishment against communities, the terrorist agents have  been emboldened because  their ultimate goal is to destroy the values that we uphold; justice, fairness, tolerance and rule of law. Whenever terrorist agents have been subjected to  the due process of the law and  punished for their acts, our society has  always made  a bold step for justice even as  security organs have argued to the contrary that our justice system impedes the fight against terrorism.

The upcoming conference would also be an opportunity to interrogate among others a number of issues. These include but not limited to  understanding  what the  key drivers of radicalization in Kenya are. In addition, the forum  should be an opportune moment to propose how  to  prevent radicalizing organizations from preying on a combination social, economic and political realities in the country to recruit youth and others to violent extremism. These,  in addition to enhancing the capacity of the youth to resist recruitment and the allure of radical ideologies. And also  enhance cross-sectoral collaboration and efforts aiming at countering radicalization. These are germane issues because local causes of  radicalization are deeply  rooted in economic, social and political issues of  which only a long-term strategy would be able to resolve.

In seeking to address radicalization a number of  actions need to be taken. These are, first  there is need to  build knowledge and expertise on counter/radicalization measures, dialogue processes with various constituencies  towards developing a common understanding on these issues.. This  also  requires collaboration between various agencies including civil societies as well as institutions of higher learning  through joint research  and strategies  on the processes of radicalization and  preventive measures. This is missing at the moment because each of the agencies and actors seems to be bowling alone.  The second set of actions relate to cross-sectoral cooperation and coordination to improve inter-agency actions as well as establishing responsibilities for each of the  organs. Even basic issues like definitions are problematic and this cannot be left in the domain of one actor.  The third set of actions relate to prevention measures and resources against extremist groups. This will require inter-faith dialogues as well as mentoring schemes in order to diminish the pool of recruits. And finally, there is need for a number of actions relating to prevention of radicalization and recruitment through social networks as well as on the internet. The most important outcome from any forum trying to address radicalization into violent extremism is/should be  that Kenya seeks to entrench a culture of human rights and  that prevention and counter-radicalization processes is part of that.

Atunga  Atuti O.J. works for Human Rights and is a Scholar at the Graduate School, University of Nairobi  Centre for Human Rights and Peace

Email: eajournal@email.com

Safaricom Security Imbroglio: How Private is our Privacy?

Safaricom Security Imbroglio: How Private is our Privacy?

Atunga Atuti O.J

 

A year ago, Edward Snowden an employee of the US spy agency lifted the lid on an elaborate surveillance and snooping activities on her citizens and foreigners including foreign heads of state and government. This was on account of national security. The question then was why the US would consider foreign sovereigns including her allies a US national security threat to warrant the actions that the government under the National Security Agency (NSA) was involved in. A week back, Vodafone, one of the largest telecommunication companies released a report detailing how governments in the territories it operates pressure telecos to engage in mobile phone communications monitoring.  The report details the grounds on which security agencies routinely  listen into, intercept data or demand for access for communications details regarding customers on their networks ostensibly on account of national security concerns.

 

In the recent past Safaricom, a local subsidiary of Vodafone has been in the news regarding a security contract whereby the Private Communications company is supposed to  develop and deliver a surveillance  infrastructure for one of the security agencies in Kenya. From a business perspective, there is no problem concerning a for-profit company undertaking such a service for a security agency anywhere in the world. In fact most governments especially in the developing countries turn to private companies for such a service. But Safaricom is no ordinary company in Kenya. It is a brand that has built its reputation on secure delivery of data and voice communication.

It is not lost on Kenyans that the same company was contracted in the transmission of Elections results through a system which  collapsed on the weight of results from a few hundred constituencies heightening tensions and accusations of compromise on the part of a section of Kenyan voters.

 

The Security contract and the report by Vodafone on routine interference by security agencies in most of the countries( these were not named on account of security of her employees as well as those of her local subsidiaries) it operates pose a number of security, privacy and human rights issues. First is the right to privacy. The report by Vodafone clearly and boldly states that in most of  the countries it operates, governments authorities require ‘direct access to an operator's network — bypassing legal niceties like warrants and eliminating the need to get case-by-case cooperation from phone-company employees’. Even though it did not name the countries, this is a very worrying trend because it completely circumvents one of the cardinal provisions of the Universal Declaration of Human Rights and Constitutions of various countries including Kenya. The right to privacy, in essence  the ‘element of various legal traditions which may restrain both government and private party action that threatens the privacy of individuals’. Article 31 of the Constitution of Kenya 2010 is explicit on this matter  and provides thus that .Art 31. [Every person has the right to privacy, which includes the right — not to have— (a) their person, home or property searched;(b) their possessions seized;(c) information relating to their family or private affairs  unnecessarily required or revealed; or (d) the privacy of their communications infringed].

 

 Safaricom is a private company that has operated and experienced exponential growth on account of the  perception that the information that the customers entrust it with is secure and safe from interference. This perception has to a great extent been dented by the Vodafone report. The second issue is the credibility gap-arising partly from the failure in the transmission of the  March 2013 electoral results - and specifically, the extent Safaricom which delivers our communications( data voice and other formats) should be engaged by a party that seeks to  engage in the surveillance of some of her customers whose information and details the company is already entrusted with by the customers. And finally there are questions as whether Safaricom would end up through acts of omission and commission misusing the information it already has about her client to the advantage of or in the service of her client-the Kenya Police Service.

 

As it is, there is already a burgeoning   global backlash against violations of the rights to privacy around the world ignited by the Edward Snowden revelations regarding the NSA, the UK wire-tapping of private conversations including those of the Royal Household, the interception of communications between German Chancellor,  Angela Markel and her colleagues and foreign sovereigns. The fundamental questions  regarding these  developments include the following; first, what is the boundary between the privacy of individuals and  the legitimate desire by government security agencies  to collect information to enhance the security of her citizenry?  Second and more pertinent is the extent to which private citizens like Safaricom and  the mother company Vodafone should be complicity in such violations.

 

While we await the decision of the Kenyan Parliamentary Inquiry into the award of the tender for surveillance to Safaricom, we should initiate debate on the above issues because they have not emerged in the deliberations regarding the contracting of Safaricom – a private company that has legitimate possessions of our information and provides a legitimate infrastructure for communications should engage in activities that seek to spy on her customers. Can Safaricom and other operators in Kenya and around the world assure their customers  in light  of the recent revelations in the Vodafone report, that  they are not  facilitating mass surveillance by giving spies unrestricted access to their networks.

 

 * a version of this opinion was published by the People on Saturday June 14th 2014

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Atunga Atuti O.J. is a human rights scholar at the Centre for Human Rights and Peace , University of Nairobi andChief Executive Officer,East Afr. School of Human Rights

 

Confessions of a Terrorist: A review

Books &arts

Confessions of a Terrorist: A review

Atunga Atuti O.J.

2014-06-11, Issue 682

http://pambazuka.org/en/category/books/92087

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The novel goes beyond the prevailing narratives of terrorist behaviour and delves into the thought processes of a terrorist, giving us unique insights into the ‘mind’ of a terrorist.

Title: Confessions of a Terrorist
Author: Richard Jackson
Publisher: Zed-books
Date of Publication: May 2014
Reviewer: Atunga Atuti O.J.

Most of the dominant narratives and explanations of terrorist behaviour and actions from the perspectives international relations, security, literature, media, film, psychology among several other disciplines have always painted the profile of a terrorist as the evil-doer, psychotic character bent on mass murder and destruction, anarchist who thrives on chaos and despondency, enemy of order and stability in the conduct of international relations and diplomacy. Not much has been written in a manner that seeks to address the question as to why terrorists act the way they do. The only ‘ voices of terrorists’ we get to hear are the sanitised ones presented by a movie characters or the media liaison officers of this or that agency that seeks to explain why certain terrorist activity took place. In essence we never get to hear the terrorists themselves explaining the reasons that drive them to take some of the actions they take, the motivations and gaols that drive them to join campaigns of terror.

Richard Jackson, the renowned scholar on security and terrorism at Otago University, New Zealand, has just released his novel, ‘Confessions of a Terrorist’, published in May 2014 by Zed Books, London which seeks to offer terrorists a voice to explicate the motives, goals, and expected outcomes of terrorist activities. It is a ground-breaking work of fiction which challenges the dominant paradigms through which we view terrorist activities. The novel goes beyond the prevailing narratives of terrorist behaviour and delves into the thought processes of a terrorist, giving us unique insights into the ‘mind’ of a terrorist. The plot of the book is straight forward, it rotates around a conversation between a retired intelligence agent Michael of the British Military Intelligence and retired Army operative and Professor Hamid Samir alias Youseff formerly Professor of Economics at Cairo University in Egypt. Professor Youseff leaves behind his beautiful wife and daughter, and highly prestigious position at the University to join a fighters group in Iraq against the US and Allies invasion of the country. What follows, in the entire novel is a conversation between Michael and Professor at a disused factory. Their conversation explores a range of issues both from the perspectives of the terrorist and justification by Michael which is initially and essentially presented in official speak whereby Michael only seems to recount the official explanations proffered by authorities as to justify actions that provoke terrorist reactions. But as the conversation proceeds, it emerges that there is a convergence of perspectives between Michael and Professor as to the motivations that drive each side to take the actions they do.

The book is structured in the form of a top secret security recording transcripts with some sections redacted which makes it interesting reading and especially due to the suspense that the blocked out segments create.

Richard Jackson is the author of several academic and scholarly publications on terrorism. He is also the  founding editor of the journal Critical Studies on Terrorism. But none of his other works as well as those by other scholars stands out in presenting fresh insights into our understanding of the motivations and goals that terror agents are pursuing in their campaigns. As a scholar, of literature, history, diplomacy and human rights, Confessions of a Terrorist is by far the most insightful book I have read on the subject since the beginning of this Century. It creatively weaves together the serious subjects of terrorism, radicalization and extremist violence, discourses on terrorism and current affairs, local and international politics, theory of terrorism into one gripping work of art. It is perhaps going to be the most read book on this subject by a variety of readers both from literature, security, history, diplomacy and contemporary politics.

The book has several redacted ( blacked out) sections ostensibly by security agents so that only the sections that help to advance their perspectives are presented. The use of handwritten annotations by the author helps to give the reader the feel of reading a highly classified ‘top secret’ dossier. Going through the book reminds one of the ‘redacted secret state documents’ we once used to read in Index on Censorship in the 1980s and 1990s when state censorship was rife and in this novel they seeks to illustrate how the authorities try to propagate narratives that reflect their world view and that promote their agendas.

The book is especially useful for the Eastern African Region where many of the countries for instance Kenya and Uganda are battling al-shabbab militants in an environment where the security and especially the anti-terrorism units seem to be chasing shadows. This in view of the fact , there has been a process of recruitment whereby Kenyans of various ethnic origins are joining the terrorist crusade. This is an issue that has baffled many of those who have studied and or followed the rise of terrorism grouping in Eastern Africa. It is a must read for all the intelligence agents tasked with dealing with terrorist threats in Eastern Africa who have in the recent past acted like headless chicken in the face of a wave of terrorist attacks in various parts of Nairobi, the Coastal and Northern Kenya. They must learn to understand the mind of a terrorist and Confessions of a terrorist is essential reading for intelligence analysts and other operatives.

*Atunga Atuti O.J. is the editor of the East African Journal of Human Rights and Democracy email:atunga2020@gmail.com

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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What would you Discusss with a Terrorist if you were in the same room?

Novel demystifies war on terror

Posted by: The People in Entertainment June 1, 2014

Prof Richard Jackson says public and academic knowledge of terrorism is limited and frequently based on ignorance and misinformation, roots for dialogue and negotiations to win fight

By Atunga Atuti O.J.

After reading and reviewing Prof Richard Jackson’s new novel, Confessions of a Terrorist, Executive Director, East African School of Human Rights and Editor, East African Journal of Human Rights ..Atunga Atuti OJ had a candid interview with the author.
Q: As a seasoned academic with many scholarly works to your name, what motivated you to venture into work of fiction on the subject of terrorism?
A: It was a very conscious and deliberate decision to write a novel about terrorism at a particular point in my career. I had never considered it before. A number of factors motivated me. After publishing eight academic books and dozens of articles, I realised that only a very small audience ever read my work and it had very little impact on people lives. Academic publications rarely if ever make a significant impact on wider public debates and political culture. I wanted to get my research out into the wider world and I had to find another medium through which to communicate.
I also noted that there were few novels about terrorism that I could recommend to my students as a way of engaging and informing them about the subject. I came to believe that writing a novel might be a more effective way of both reaching a wider audience and engaging my students through a more exciting and engaging medium. Lastly, I felt that fiction allows for greater freedom in expressing certain ideas and perspectives. The academic form, on the other hand, is often very constricted by the rules and strictures of ‘scientific’ writing.
Q: Was it difficult to discuss the issues raised in the conversation between Professor and Michael in a full length research text-book? What value addition does the genre of a work of fiction (a novel) bring to our understanding of the subject of terrorism?
A: Many of the issues raised in the novel have long been discussed in academic texts, often at great length. The problem is not that such literature doesn’t exist, but rather than it is rarely heard, and if it is heard, it doesn’t always stick to the readers minds. As a consequence, public and academic knowledge of terrorism is limited and frequently based on ignorance and misinformation. The value-added of a novel therefore, is that its form is deliberately affective, emotional and invitational: it asks the reader to identify with the characters and to imagine themselves in similar situations.
It uses drama, tension and emotion to pull the reader into another world where alternative realities can be imagined and experienced. This way, new issues, perspectives and arguments can have a more forceful impact and potentially generate new thinking and perspectives. In this case, a novel in which a terrorist is the central character can function to break down stereotypes and counteract misunderstandings and misconceptions about their motives and mind-set.
Q. Africa is dealing with the issue of radicalisation. This is a subject that your novel addresses. What would be your advice to the government and others, faced with the challenge?
A: The biggest problem we are currently facing in relation to terrorism is that we don’t understand (and often don’t want to understand) the reasons why some people and groups feel the need to violently oppose governments and their policies. And because we don’t understand them, we invent reasons and labels for explaining their actions, such as ‘radicalisation’, religious extremism, fundamentalism and so on. In most cases, these explanations are inadequate and misleading. My advice to any government facing violent insurgency is to first have an honest discussion with both the violent actors and their supporters and the groups they come from, as well as academic experts and local people.
Simply ask them why they are prepared to kill and be killed in this struggle? Ask them what they really want and what it would take for them to stop these violent actions? Once a deep, honest discussion has occurred and an in-depth investigation has been undertaken, it will become clear what the political grievances are and what reforms and changes need to occur for the conflict to end. Dialogue and negotiation is the best way to reduce violent attacks and end campaigns of terrorism in the long-term.
Responding with counterterrorist violence has little-to-no effect on the number of terrorist attacks, in the absence of other measures to address the underlying issues. In fact, in many cases, it can actually escalate the violence further. I think we’ve seen this dynamic at work in the East African region: use of force by the Kenyan government has been met by even greater force from the terrorist groups. It’s a cycle of violence and retaliation that can only be broken and resolved through dialogue.
Q: What is your view of images and narratives of terrorists as ‘martyrs and freedom fighter’ vis-a-vis that of terrorists as ‘irrational evil doers’?
A: In any conflict involving violent resistance, there will always also be a war of words and labels. The government will always call its opponents ‘terrorists’ as a way of trying to delegitimise them and demonise them among the public, as the governments of Ukraine, Syria, Israel and others are currently doing. At the same time, the insurgents and their supporters will refer to themselves as ‘freedom fighters’ and ‘martyrs’. None of these labels are particularly useful; they are not objective descriptors and they don’t help us to better understand the conflict or what motivates the fighting.
In an ideal world, we would find more neutral terms that don’t have such powerful connotations and culturally-laden meanings. More importantly, however, this kind of labelling and its consequences does nothing to reduce or end terrorism; it simply reinforces the current cycle of violence, and in many cases, creates new sources of grievance for the terrorists. The torture in Abu Ghraib and Guantanamo Bay, for example, motivated a great many new terrorists.
Q. Your books delve into the subjects of responses to terrorist threats and the increasing use of the military as a counter-terrorism strategy, what is your advice to governments which seek to respond to such threats with a sledge hammer?
A: My advice is simple: don’t to respond to acts of terrorism in this way, for a number of reasons. First, governments should always try and adopt policies based on a solid evidential foundation. The fact is that at present there is no solid evidence that employing massive counter-violence against terrorists actually works to reduce or end terrorism. It certainly hasn’t worked in the war on terrorism launched after 9/11. The current state of evidence actually points in the other direction: dialogue and negotiation have a much higher chance of reducing and even ending the violence.
Second, the risks of using a violent sledge hammer outweigh the potential benefits, because counter-violence risks creating new grievances, especially when innocent people fall victim. In effect, it risks escalating the conflict. It also risks undermining the legitimacy of the government and creating sympathy for the insurgents, especially if human rights are abused. There are three key principles which should guide counterterrorism policy: proportionality, legitimacy and effectiveness. That is, governments should respond in a manner which is proportional to the threat; don’t go overboard and enact disproportionate measures which inconvenience and oppress large numbers of people.
Maintain high moral standards and human rights protections; never resort to the same methods and approaches of the terrorists, but make upholding human rights the central value of the counterterrorism efforts. Finally, only enact measures that have been proven to work, or which have some basis in evidence; don’t waste resources on measures which are largely pointless or symbolic. At this moment in the global war on terror, adhering to these three principles would go a long way towards making the world a more peaceful, just and terror-free place.

‘Killing a fly with a Sledge Hammer’ Nairobi Metropolitan Command and the fight against Terrorism

The History and Context of addressing Terrorism in Kenya

Kenya has suffered a number of terrorist attacks since 1975 . This is when the first reported terrorist attack at the Starlight Night Club( current Integrity Center) and another at the Information Bureau near the Hilton and at the OTC Bus station that caused combined fatalities at 27 persons.

Since then, Kenya has experienced a number of other attacks in the 1980s, at the Norfolk Hotel, the 1990s perhaps saw the worst attack on Kenyan soil with the bombing of the American Embassy in 1998 which caused a record 224 fatalities and over 5000 injuries. There have been a number of other attacks including Paradise Hotel Kikambala(2002), in Nairobi at the City gate restaurant(2007), in 2010, there were three terrorist attacks in Nairobi’s Uhuru Park, at Kampala Coach station and in various other places. Most of these were linked to the al shabab terrorist group, the in lawless Somalia.

Kenya sent her forces into Somalia after a series of attack on tourists and other public spaces in various parts of the country. The incursion into Somalia was intended to forestall any future attacks by disrupting the al-shabab network at source. Kenyan Defence Forces are still in Somalia on that mission which has since been taken over by the African Union as the African Union Mission in Somalia(AMISOM).
The sporadic attacks on public spaces were succeeded by the attack on West-gate shopping mall in Westland suburbs of Nairobi. This attack caused more that seventy fatalities. The Westgate attack was a test case on the capabilities of the various agencies tasked with the fight against terrorism. Even though there is now reliable information to the effect that there was ample intelligence, this was never acted on .The rescue and recovery operation was fumbled and at best demonstrated the incapacities of our agencies to deal with terrorism and especially the capacity for disaster management and response.

But more importantly it demonstrated the inappropriateness of using the military in such operations because available information indicate that the entry of the military in the operation worsened than resolved the crisis.

Responses to Westgate and Establishment of the Nairobi Metropolitan Command

The West-Gate attack in September 2013 was responded to by what the president called a Multi-Agency combined force drawn from various agencies mandated with responding to National disasters and security threats. The initial response by the General Service Unit RECCE Unit we have reliably learnt was very effective and managed to contain the attackers to one part of the mall within a short time after the attack. But the entry of the Kenya Defence Forces which has not been explained prolonged the rescue and recovery to the extent that there were perhaps more fatalities than might have been if the RECCE Squad had been allowed to complete their initial operation. The president promised and has not delivered on a Commission of Inquiry that would have highlighted acts of omission and commission that might have take place prior to, during and in the aftermath of the terrorist attacks. Much of the investigations available is from the Parliamentary Inquiry which held sessions with all the Security Agencies.

The Parliamentary Report has in addition identified a number of other Agencies which have in their acts of omission made it easy for terror groups to plan and affect their attacks and other acts of terrorism. The Report has essentially apportioned blame for the attack on a number of Agencies; the Police for not acting on intelligence that was availed to it and the Kenya Defence Forces for the mismanagement of the rescue and recovery operations. Other agencies include the Departments of Immigration, Refugee Affairs and Registration of Persons which due to corruption have made it possible for terrorist agents to move into the country without being detected. Other Departments including the National Intelligence Service have been singled out for providing timely information and intelligence that was not acted upon occasioning the situation the country witnessed at Westgate. It is on this basis that we made a number of recommendations to the Parliamentary Inquiry. The recommendations were made with the view of strengthening its report which in turn would be a basis for reform and/or re-organization of the various Agencies to thwart possible future threats. The recommendations included among others the following a) need for a coordination mechanism for responding to national disasters and security threats as well as sharing of intelligence and other resources; b)enhancement of the capacities(resources, facilities and equipments)of various security agencies that are undertaking useful functions in securing the country and averting threats to homeland security; c) conducting an evaluation of various other Agencies(including, the Departments of Immigration, Refugee Affairs, Customs and Border Control) whose work and operations directly touches on National Security with the view of placing them under the Department of Interior; d) the restructuring of the Provincial Administration as envisaged in the Constitution of Kenya 2010 and Section 17 of the Sixth Schedule as a compliment to National Security Organs; e)advocated for further resourcing(financial, equipment and other facilities) of the National Security Agencies in order discharge their functions more efficiently, and f)emphasized the need to respect the Constitution with regard to the deployment of Kenya Defence Forces in Internal/Domestic security operations.

A number of these recommendations and other from various actors who addressed the Parliamentary Inquiry have been presented in their final report that was tabled in Parliament in December 2013.

Nairobi Metropolitan Command
At a meeting with the Chief of General Staff and other Senior Military Officers, the President announced the formation of the Nairobi Metropolitan Command of the KDF to address among other issues, combat terrorism and especially in urban centers, drug trafficking and spiraling crime. This development in our view will work to undermine other Agencies including the National Police Service and the Anti-Terrorism Police Unit, the National Intelligence Service as well as other Specialised security formations that are working to combat drug trafficking and general crime. We are persuaded that whereas the President’s decision might be well-meaning in view of the increased cases of crime, terrorism and related acts, the best way to address this situation should essentially be through the resourcing of the various Services who are otherwise undertaking a commendable job even in the prevailing circumstances.

With a fast reforming Judiciary, the President should have been best counseled to act to address the outstanding issues regarding the acceleration of the Police Service reforms and resources. We appreciate that the President is dealing with a number of spill-over issues from the previous administration regarding resourcing of the police service best illustrated by the corruption surrounding the Police Forensic laboratory and procurement of plant and equipment. We are however convinced that the response from the Uhuru Administration should not be to run away from the real issues pertaining to Police Service reforms but to confront them.

We are of this view for the following other reasons:

1)Nature of Terrorist threats –the current and future terrorist threats require more of intelligence-led policing than application of force. The WestGate and the recent Pangani bus explosion attest to the nature of terror threats faced by this country which the Miliotary is ill-equipped to address. The Parliamentary Inquiry has in its report explicated the nature and manifestations of these threats. Other than the disruption of the al-shabab network within Somalia, KDF is ill suited for the evolving nature of terrorist threats which have taken an undefined nature. These are the kind of threats for which other Agencies are best trained for.
2)KDF as an anti- terrorist response mechanism- we have learned from the experience of Westgate that the entry of KDF complicated and fumbled the emergency rescue and recovery operations. There is evidence that KDF was ill-suited and /or prepared for the operation and that the operations at West gate should have been left to the competence of the RECCE Squad which is best trained for similar built environment situations.

3)KDF’s constitutional mandate- the framers of the Kenya Constitution 2010 have assigned each of the Services specific roles for which they are trained and well suited. Whereas we are persuaded by the use of the military in operations like the ones in Northern Kenya where a combination of the terrain and equipment does not allow the Police Service to be effective, the situation in Nairobi and other urban centers for which the Metropolitan Command is being established demand for a different approach.

4)The National Police Service, the Anti-terrorism Police Unit and other specialized formations offer the best option for combating crime, drug trafficking and terrorist activities. These Units need to be resourced with better equipment and further training in order to effectively discharge their mandates.

The Parliamentary Inquiry Report has documented that there was intelligence sharing between the Agencies. We have reason to believe this position. We are in agreement with the conclusion of the report that the intelligence on imminent attacks was never acted upon. The West-Gate incident was therefore effective due to lack of timely actions by the other Agencies that were supposed to act on the intelligence provided. In our view addressing Terrorist threats using the military in view of this available knowledge and information is akin to trying to ‘kill a fly with a sledge hammer’.


Recommendations
We are of the persuasion that there is need to build and integrate the capabilities of our security agencies in order to advance our national interests. Our Defence Forces will continue to be the cornerstone in averting external threats but we must work to enhance the capacities of other agencies tasked with domestic/homeland security. We must support our diplomats who work to pursue our national interests, institutions that work to strengthen governance and human dignity, intelligence, policing and law enforcement agencies that unravel threats to Kenya’s security and reinforce the justice system to deal with those who seek to disrupt our way of life. These cannot be guaranteed by having the boots in the streets as envisaged in the Metropolitan Command. Experience from elsewhere has shown that the Military is best placed to play a complimentary role in the fight against terrorism and especially in a situation like we are confronted with.

We are therefore appealing to the President to review the decision to establish the Metropolitan Command because the functions assigned to this command are no different from ordinary policing. The fight against terrorism will never be won by the number of boots we have in the streets but by the level and quality of resources and equipment availed to the core agencies tasked to address the issue of terrorism. These include the National Police Service and the National Intelligence Service complimented by the military as the case is in Somalia.

Lets Save the Police Reform Process in Kenya

Memorandum to CIC National Police Service Amendment Bill 2013
To: The Chairperson Commission on the Implementation of the Constitution
From: The CEO The East African School of Human Rights P.O. Box 11391-00100 Nairobi, Kenya CC: Date: July 5th 2013 Re: memorandum on the National Police Service Amendment Bill 2013

We wish to enjoin our colleagues in endorsing the attached Memorandum and look forward to your most favourable consideration. Introduction In exercising its mandate The Commission for the Implementation of the Constitution has invited public participation to review the National Police Service (Amendment) Bill and the National Police Service Commission (Amendment) Bills, in the spirit of upholding the principle of public participation under Article 10 of the Constitution. We/I as citizens have taken up this invitation both as my/our Constitutional right and responsibility to give our contributions to the proposed amendments as below.

BACKGROUND In 2010 Kenyans gave themselves a new Constitution that was aimed at redressing the impact of poor governance and its effects occasioned by state failure. Through an all powerful executive, Kenyans were subjected to repressive rule where the instruments of governance were used to subjugate and oppress citizens. Post independence rule was characterised by abuse of power by the executive, human rights violations, proliferation of lawlessness and lives without dignity. It was these conditions that informed the struggle for constitutional reform and ultimately the Constitution that was adopted in 2010.

Constitutional gains – The new Constitution radically altered the centre of power by shifting this from the executive and locating sovereign power on the people. The Constitution provided for this power to be exercised directly or through delegated institutions. Additionally, and in order to check the excesses of the executive the Constitution provided for robust mechanisms for checks and balances. The various institutions created and recognised by the Constitution for purposes of checks and balances were the Parliament (both the national assembly and the senate), the judiciary, independent commissions and independent offices.

Sovereignty of the people – all power is vested in the people The Constitution of Kenya 2010 recognises that all sovereign power is vested on the people of Kenya and they determine how this power is exercised, either directly or through democratically elected representatives. The Constitution also provides for this power to be exercised at national level and county level.

Separation of powers – The Constitution of Kenya 2010 also provided for the separation of powers to guard against the excesses of an all powerful executive and avoid concentration of power in one office. Additionally, the separation of powers allowed for checks and balances on the various arms of government.

Devolution of powers– While the Independence Constitution had provided for devolution of power, this was done away with the amending of the Constitution. The Constitution of Kenya 2010 has also created the provision for power to be exercised both at a national level and at local level through the creation of county structures. Promotion and Protection Human of rights – The Constitution of Kenya 2010 also made provision for the safeguarding the rights of the people through a robust bill of rights that ensured that official powers were not abused or used to violate the rights of and citizens. Values based governance- The Constitution of Kenya 2010 in contrast to the previous Constitution made central the exercise of governance anchored on values and principles and articulated these explicitly in its provisions.

Check & balance mechanisms – In addition to the separation of powers provided for, the Constitution went further to create Constitutional commissions that would be key in the implementation of the Constitution and act as a check mechanism on the arms of government. Amendment of the Constitution – The Constitution of Kenya 2010 also created robust safeguards to the amendment of the Constitution to ensure that these were not done thoughtlessly and any changes to the Constitution were subjected to rigorous processes. Justification The recommendations therefore contained in this memo regarding National Police Service (Amendment) Bill and the National Police Service Commission (Amendment) Bills are premised on the recognition of the sovereignty of the people under article 1, 2, (4) of the Constitution, the values and principles in Article 10 and 232 and the citizen’s responsibility to defend the constitution as called for in article 3. Concerns to proposed amendment bills to the Police Service Act 2011 and Police Service Commission Act I/We note with concern that some of the proposed amendments as contained in the National Police Service (Amendment) Bill and the National Police Service Commission (Amendment) Bills run contrary to the Constitution of Kenya and threaten to erode the gains made as a result of the Constitution.

1)Amendment of the Constitution by changing the mandate of the Police Service Commission and that of the IG In this regard it is noted the amendments are in certain specific areas attempts to vary and re-assign constitutional mandates of the National Police Service Commission by transferring these to the office of the Inspector General, contrary to Constitutional provision.eg the insertion of new section 8 which has the express implication of ignoring any written law and goes ahead and purport to allocate powers and functions of the National Police Service Commission to the Inspector General hence defeating the purpose of dispersing powers for accountability purposes as envisioned in the COK 2010 who is an individual

2)Attempt to limit the role and mandate of the Police Service Commission It is again noted that, the proposed amendment bills heighten the Personalisation of power by transferring and limiting roles and responsibilities from the police service commission to the Inspector General – negating the building of strong institutions to entrench good governance

3)Undermining of Devolution It is noted that by removing provisions in the Police Service Commission Act that require the Inspector General to consult with the County Policing Authorities there is made an attempt to undermine the principles of devolution of power and county governments’ ability to ensure security in their respective counties and govern effectively.

4)Derogation of the principles of human rights By introducing provisions that attempt to justify the use of extra judicial force and limit the rights of officers in the disciplined service the proposed amendment bills derogate the principles of human rights as articulated in the Bill of rights.

5)Disregard of values and principles – These attempts at varying the mandate of the Commission, concentrating power on an individual office or derogating the principles of human rights proposals in complete disregard to the values and principles of governance eat away at the supremacy of the Constitution and threaten to erode the gains made by passing The Constitution of Kenya 2010. Analysis and recommendations On the face of it and read in isolation, majority of the proposed amendments to the acts seem harmless. However upon further scrutiny, and read in tandem with The Constitution of Kenya 2010 the following specific observations and recommendations as in the tables below are made. Conclusion This memorandum has been made in good faith made and made solely by the need to secure the gains brought about by the new constitution which in my/our view the ‘mischief’ in the proposed amendments was intended to undermine.

We are available to send you the entire schedule of our recommendation via email please send us a request for the same from email: eajournal@email.com
Atunga Atuti O.J.