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.

Is Bangladesh-like Sweatshop Accident probable in Kenya EPZ Sweat-Shops?

 

The Contrarian

By Evelyn Groenink (The ZAM Chronicle)

Customers should not boycott clothes that have been made by exploited workers, says the director of the East African School of Human Rights, Atuti Atunga.  It’s a good idea, though, to question the origins of the goods you buy, and to engage the brands.

When a clothing factory in Bangladesh collapsed, killing over a thousand workers, consumers worldwide felt guilty. “It’s partly our fault, because we want to buy clothes made cheaply in sweat shops” was a recurring outcry on social and in traditional media. The solution: not to buy these clothes, just like we boycott blood diamonds and other ‘unfair’ materials? Low-end brands like Wal-Mart and Target, and higher-end ones like Levi’s, Calvin Klein and GAP, use labour from the Kenyan Export Processing Zones (EPZ’s), where labour conditions are often as miserable as those in Bangladesh.  But Kenyan human rights expert Atuti Atunga does not believe in Western-only guilt, and even less in Western boycotts.

Aren’t Western consumers to blame for sweat shop labour?

No. It’s a shared responsibility between government, factories, unions, labour and building inspectors, importers and consumers.

But don't they as consumers want our clothes to be made cheaply?
The amount paid to the worker who made the garment is minimal. It could even be doubled without affecting the final price much. Importers pay much more for electricity.

Wouldn’t the improvement of conditions such as building safety, health care for workers, and humane working hours, affect the price as well?
The producers and factory owners make huge profits. They could easily afford better labour conditions.

The Kenyan government says that importers could take their dollars and leave the country if they would have to pay the workers more.
There is no real threat. The companies who invest in the EPZs receive huge tax benefits. They won’t run away if workers are treated better: imagine the damage that would do to their reputations.

So why isn’t the Kenyan government doing something about the sweatshop conditions?
That is what we have been asking as human rights researchers and activists. We have had good laws regulating labour and safety in the EPZs since 2007, but nobody checks up on adherence to the laws.

Why is that?
Factory owners tend to slip building and labour inspectors an ‘envelope’, so that they don’t check any further than the reception desk. There is also collusion between factory owners and government departments.

Shouldn’t the trade unions cry foul?
The EPZs have been more of an NGO issue because the EPZ managers and authorities have stopped workers from unionising. In turn, unions then called NGO’s ‘busy-bodies’ for engaging with EPZ workers. There is also collusion between factory owners and some union officials.

So we are just waiting for another ‘Bangladesh’?
A disaster like the one in Bangladesh could happen in Kenya, yes. It has happened here in a paint factory in the past.

But surely a boycott would send a strong message and perhaps improve the situation?
There was a boycott call in the case of a canned fruit factory in 2010. The result was disastrous. There were huge losses for the company, the workers and the country.

So what then?
There should be social sections in all agreements with importers. I would also propose a carrot-and-stick model in which active consumers, who investigate the origins of their goods, report favourably on companies that address workers’ rights, and expose companies who do not. International pressure would also help change the attitudes of the unions, who would feel a need to justify their role in protecting workers.
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This interview was exclusively published by ZAM magazine-https://www.zammagazine.com/chronicle-1/18-the-contrarian on June 25th, 2013

Somalia’s Defining moment

Somalia’s Defining moment 

Atunga Atuti O.J.

For the past forty three years Somalis have never had a chance to elect a president in their own soil. And over the past 21years, the Country has not had a central government. September 10^th is therefore a defining moment for the Country. It is the first time that Somalis participate in the election of their president. The past two presidents under the transition arrangement have been undertaken in Kenya and Djibouti. These elections are therefore an important confidence boost, it will also help close an era of conflict and open doors of hope, peace and development.

The elections have come at a time when Somalia has missed several deadlines in the move from the transition arrangement to a more stable government which for the very first time in her twenty one tumultuous past will be constituted in Mogadishu. It is not only the Somalis who are euphoric about this development, Kenya which is host to large Somalia populations and has borne the burden of un-ending refugee crisis and has also been a victim of Somalia instability and radical elements and which has contributed a large force for the pacification and stabilization of the country is keen to see the process concluded peacefully. Other regional actors interested in the establishment of order and central control in Somalia include Ethiopia, Djibouti Burundi and Uganda both of whom have contributed to the African Union Mission in Somalia. The scenes witnessed in Mogadishu in the build up to the presidential elections are a clear testimony of the yearnings among the Somali populace themselves to have a transition from war to peaceful streets and beaches where all Somali people will be able to call home.

The level of interest that both the parliamentary and presidential polls have elicited is manifested in the number and quality of persons who have offered themselves for various positions. Somalia Diaspora has shown keen interest in the affairs of their motherland. This is testimony of the wish to be involved in the reconstruction process and  end  to the anarchy  and displacement that has reigned supreme for the past two decades. Apart from the quality of candidates for the presidency, it is also worth noting that a relatively fresher and younger generation of Somalis are keen to take over leadership. The presidential contenders are between 45 and 55years.

As Somalis prepare to usher in the new post-transition government, Somalia will continue to require the support of the neighbours Kenya, Ethiopia, Djibouti to overcome the challenges of post-war reconstruction. And Somali war was no ordinary war. It is a conflict that has spawned over twenty years which has essentially annihilated all forms of development-social services, infrastructure, physical facilities like airports and harbours, roads, schools and universities. In a word Somali was reduced to a wasteland by her own leaders’ insatiable desire to acquire political power by all means. Somali will therefore require the support of her neighbours and the international community to re-build her human capital curtailed by twenty years of no central authority. The country will also need to establish instruments of government: a police force, an army train and deploy doctors and nurses, teachers and other cadres of personnel to run various departments and agencies of state and society. This is no easy task but more critical is the necessity for sustained support so that the allure of bandit economy and warlord-ism, piracy and wanton exploitation of Somali natural resources by local and international criminal networks does not return to destabilize the new administration. The new government also needs continued and sustained efforts to win the war against the extremist ideology that found expression in al-shabab even long after the militants are vanquished.

Somali has a large youth population-over 65 percent- many of whom have no formal education and who have grown in the lawless streets of Mogadishu and other towns and hamlets. This will present an immediate challenge of meaningfully engaging them so that they do not become disenchanted with the new government and end up as fodder for remnants or new militias and other elements who currently benefit from the status quo. These youths will need to be engaged in the reconstruction of their infrastructure, law and order, peace and stability. But more importantly the new government has to find ways of investing in enhanced skills of the Somali youth as a worthy investment in the future stability of the Somali Nation and Society.

The Somali economy is in tatters but the resilient of the Somali nation in Diaspora and even in Somali itself is one of the biggest strengths and assets that the new government and the international community can build on. Somali Diaspora can bring needed skills and international exposure and contacts necessary for the new government to take off. The Somali Diaspora in Kenya and their level of business acumen is an example of what a stable Somali state and society can deliver. Twenty years of no centralized authority, war and plunder would have routed even the strongest of Nation-States but the Somalis have continued to thrive even in foreign lands against all sorts of profiling and adversities. It is time the International Community  provided  the New Somali government with some sort of “Marshal Plan” for accelerated reconstruction and development in order to forestall another false start.

Africa is rising and is perhaps the only continent which through a combination  of resilient  peoples has escaped the vagaries of worldwide collapse of economies. It is time that African countries take the lead in the reconstruction of Somali. It is perhaps the only return on of investment in twenty years of Somali wilderness. It will be unforgivable of the African countries that entirely constitute the AMISOM Stabilization force to leave the reconstruction work to other countries whose soldiers have not shed tears and blood in Somali hills and valleys. It should always be remembered that when other countries interests were threatened by piracy and sea-robbery, they constituted a force to protect their interests. Kenya, Uganda, Djibouti and Burundi have taken the lead in dealing with internal threats in Somali. It will be important that nationals of these countries be accorded priority in the reconstruction process.

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Atunga Atuti O.J. is the Chief Executive Officer of the East African School of Human Rights and Convener of the Nairobi Policy Dialogues on East Africa and the Horn of Africa Email: eajournal@email.com

NIS Bill 2012 seeks to create a Police State

East African School of Human Rights

Memorandum to Parliament and other Stakeholders regarding

GLARING FLAWS AND CONTRAVENTION OF THE CONSTITUTION CONTAINED IN THE NATIONAL INTELLIGENCE SERVICE BILL, 2012

AUGUST 16^TH, 2012

The National Intelligence Service Bill, 2012 currently with Parliament for debate and possible enactment into an Act of Parliament for the purposes of fulfilling the Constitution of Kenya 2010 regarding the establishment of the Service and specifically to implement Art. 238 and 242 of the Constitution of Kenya 2010. In its present form there are a number of glaring gaps and provisions that are likely to contradict the letter and spirit of the Constitution and may legalise and legitimise a return to the mode of operation of the dreaded Special Branch. If passed in its present form, the Bill will reverse the gains of the new era of the political and constitutional reforms. The Bill entrenches impunity and manifests a clear threat to National Security that the Service is intended to promote, preserve and protect.

The following are some of the contentious issues arising from the NIS Bill, 2012:

A.     LIMITATIONS OF THE RIGHTS AND FUNDAMENTAL FREEDOMS

1.      In glaring contradiction of the Constitution, Clauses 31 to 42 of the Bill propose extensive limitations of the rights and fundamental freedoms. These include:

                                i.            Clause 37 of the NIS Bill, 2012 contradict Article 31 of the Constitution, by providing limitations to the right to privacy by giving the NIS personnel express powers to:

·         Search a person’s home or property.

·         Seize a person’s possession.

·         Monitor or interfere with a person’s communications. 

                              ii.            Clause 50 (1) gives the Director General sweeping extra-judicial powers to ensure the effects of a warrant which in normal circumstance is issued by a judge. The effect of such warrant (Captured under Clause 46) and the extra-judicial action of the Director General include authorising NIS staff to: 

·         Enter any place, or obtain access to anything;

·         Search for or remove or return, examine, take extracts from, make copies or record in any other manner the information, material, record, document or thing;

·         Monitor communication; or

·         Install maintain or remove anything.

- (We are of the view that for limitations of rights to be effective, there has to be clear justification and clarity on the conditions under which the said limitations are to be effected)

- The Bill should also guard against seeking to curtail freedom of information and especially for media practitioners in undertaking their duties and democratic functions

- Finally, the Bill must guard against attempting to limit rights saved under Art. 25 of the Constitution of Kenya 2010. 

B.      USE OF FORCE, FIREARMS AND PREVENTING ESCAPE (DETENTION)

 The NIS Bill 2012 introduces the use of force, use of firearms, and detention as elaborated under the First Schedule of NIS Bill 2012. This is bound to create competing jurisdiction between the NIS and the police. The arrest and detention powers of NIS will create competing jurisdiction with the police. For instance the clause on arrest; the Service should not arrest any person that is a preserve of the police and they should cooperate. Moreover, Schedule 1 D-Preventing Escape presupposes once again that the Service is an arresting authority. The danger of giving an institution whose accountability to the public is little such vast power is endangering the same public they seek to protect. The Board of complaints established under the Act is not independent enough to give that assurance that is shall perform the oversight similar to that envisaged by for example IPOA.

Such powers vested in the intelligence organisation will undoubtedly be misused by even creating assassination squad. Consequently, Kenya will effectively become a police state.

 -There is need for clarity regarding the members of the Service carrying arms and such other law enforcement functions that lie within the province of disciplined forces for which adequate procedures and safe guards are provided in the relevant laws regulating the same. What law will regulate the carrying of arms by the service?

C.      IMMUNITY BORDERING ON IMPUNITY

Clause 78 of the NIS Bill, 2012 provide protection of Director General and members of the Service for acts done in good faith. Clause 78 also shield the Director General or any member of the Service from producing any document or divulge or communicate any matter or thing relating to the any proceedings in a court, tribunal or commission of inquiry. This means the Service can arrest, detain and even conduct extra-judicial killings without being questioned by any authority. The NIS Bill clearly creates an opaque institution that operates above the law.

Art. 78 (2) insulates the DG and the Service from normal accountability demanded of the Service to other Constitutional bodies. It purports to legislate that not even Parliament or a duly established Commission of Inquiry can summon the Service. Parliament has unlimited powers even to impeach the President-how can the Service be so insulated that it is not answerable to anyone- Court, Tribunal, Commission of Inquiry”?

D.     TRANSITIONAL CLAUSE

Art. 86 (1) and (2) of the NIS Bill, 2012, provide blanket transition for the Director General and Directors without requisite vetting process that is usually conducted for all the state institutions to provide a fresh beginning under the new constitutional dispensation.

It is proposed that the DG like other State Officers of the same calibre be subject to the provisions of the Constitution of Kenya 2010 in respect to the terms of employment and  the position be filled under the NIS Act on a competitive basis and  within the established parameters and procedures and that Parliamentary Approval be a prerequisite for filling of such a vacancy.

E.      CENSORSHIP

Art. 60 of the Bill prohibits unauthorised access and retention of information by any person who is not a member of the service, and provides for a penalty of conviction to imprisonment for a term of seven years. Given the vital role played by media in Kenya, this amount to gagging the media and seeks to prevent whistle blowers in respect of divulging of important information that is of National Interest. It further purports to contravene Provisions of the Constitution in respect to Access to Information and freedom of expression which are fundamental rights. (There is an established tradition in this Country regarding the Media and publication of information in its possession that is of national Interest). This tradition which has found expression in the Constitution of Kenya 2010 is undermined by this provision.

F.       OVERSIGHT

Without due regards for the separation of power between the three arms of the government, Clause 66 and 67 of the NIS Bill ironically provided guidelines on how parliament conducts its intelligence oversight responsibility. What if the Joint  Committee of Parliament does not agree on a particular subject? What happens to the Oversight roles of each of the Chambers? 

G.     REPORTING

Art. 82 Annual Report- All Statutory Bodies report to Parliament why should the service in its report exclude Parliament?

H.     INTEPRETATION

Some terminologies are not defined under the interpretation section most glaring is the term extreme emergencies which has been left to the discretion of the Service- what will stop the service from treating each of the situations as an extreme emergency?

I.        FREEDOM OF INFORMATION

The NIS Bill, 2012, limits right of access to information contrary to Article 35 of the Constitution. 

J.        DEPUTY DIRECTOR GENERAL

The NIS Bill, 2012 do not provide for the substantive Deputy Director General position. There is need to provide for Deputy Director General who can act in the absence of the Director General.

-       Under establishment of the Director General, there is need to also create Deputy Director General. This will obviate unnecessary overload on the DG and also a potential difficulty where no other person may execute the office of DG in the absence or incapacity

-        The Proposed establishment of the position of Deputy Director General is in line with  the practice in other Agencies

K.      QUALIFICATION OF DIRECTORS

For purpose of establishing competitive human resources and cutting edge intelligence institution, there is need for the qualification of a service director to be pegged to a recognised degree, which is implemented from the effective date of the NIS Act.

L.       WARRANTS

 Art. 44 on issuance of warrants the section starting ...reasonably....up to  the end of Article 44”.... should be removed. It is not for the judge to “believe”. It’s the Service to convince the Judge that there is reasonable believe. But in any event, it ought to be upon satisfying the Judge that all other means have been tried and failed.

Art. 50 removes the principle of Judicial supervision of the service by conferring powers provided in Art. 46 without defining what the “extreme emergency” entails. There is therefore need for clarity that warrants are specific and are targeted at particular individuals and premises rather than as sweeping instruments at the disposal of the service. There is therefore need to define “circumstances” that constitute extreme emergency because this provision might be used to circumvent due process if the service construes or deems all situations to be extreme emergencies

What happens to warrants after they have been issued and executed? It is proposed that Art. 51 be expanded to require the Service to establish a mechanism for accountability for warrants issued be established in the Bill so that a return of warrants to the court that issued them is provided for.

It is also proposed that for clarity Under Art 47 (1) that the period of validity of a warrant be stated in days e.g. 30 days rather than ‘month’ because some months are longer while others are less.

M.   OFFENCES

Art. 52 dealing with offences of torture, cruel, inhuman or degrading treatment and prescribes a penalty. It is proposed that the section be amended to be in line with relevant statutes that deal with torture and related crimes as well as the case may be in the proposed “Prevention of Torture Bill”.  

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AA/STAKEHOLDERS