COUNTER TERRORISM AND HUMAN RIGHTS IN KENYA

MOI UNIVERSITY SCHOOL OF LAW ANNEX CAMPUS FLB 400 RESEARCH PAPER COUNTER TERRORISM AND HUMAN RIGHTS IN KENYA SUBMITTED BY Jumah Daniel Ochieng’ SUPERVISOR Mr. J. Ayamunda A dissertation presented to the faculty of law, Moi University in partial fulfillment of the requirement for the award of the bachelor of law (LLB). APRIL 2014. Declaration I, Jumah Daniel O, do hereby declare that this research is my original work and that to the best of my knowledge and belief it has not been previously, in its entirety or in part, been submitted to any other university for a degree or diploma. Other works cited or referred to are accordingly acknowledged. Signed: …………………………………………………………….. Date: ……………………………………………………………….. Supervisor This dissertation has been submitted for examination with my approval as University Supervisor Signed.................................................. Mr. J Ayamunda. Moi University School of Law. i Dedication To my family members, Mr. Douglas Juma Malowa, Mrs. Dorine Juma, Josephat, Florence, Majuma and Fredrick. ii Acknowledgement No work of this type can be done by one self alone. It is in the nature of the work that its accomplishment demands a thorough engagement with many persons. I am indebted to many individuals who assisted me in the course of conducting this study. Great things, they say have humble beginnings. I wonder how this work would have ended without ‗external‘ assistance, support and guidance. I acknowledge my indebtedness, gratitude and sincere appreciation to my supervisor Mr. J. Ayamunda for his support. His constant corrections and demands for consistency helped to give a sense of focus and direction to the work. I wish to extend my appreciation to the Moi University School of Law staff for all the facilities that was availed to me during my stay at the institution. To my family, Mr. and Mrs. Juma, a lot of appreciations come your way for the constant financial and moral support that you have always accorded me. Thank you very much. I also want to express my thankfulness for all my friends and classmates who pushed me to the good end of pursing my study with their unreserved support. I am particularly indebted Yuvenalis Obare, who preciously assisted me during the difficult times of writing this research. To the Almighty Lord, Thank you for taking me up to this end. iii List of Abbreviations A.C.H.P.R-African Commission on Human Rights. A.C.S.R.T-African Centre for the Study and Research on Terrorism. A.T.C.S.A- Anti-Terrorism, Crime and Security Act. A.T.C-Anti Terrorism Convention A.U - African Union. C.I.A- Central Intelligence Agency. C.T.C - Counter-Terrorism Committee. C.T.E.D- Counter-Terrorism Committee Executive Directorate. F.B.I - Federal Bureau of Investigation. F.I.S.A - Foreign Intelligence Surveillance Act. I.C.J – International Court Of Justice. N.A.T.O. - North Atlantic Treaty Organization. O.A.U- Organization of African Unity. O.D.I.H.R -Office for Democratic Institutions and Human Rights O.S.C.E-Organisation for Security and Co-Operation in Europe. P.S.C -Peace and Security Council. U.N – United Nations. U.N.C.H.R- United Nations High Commissioner for Human Rights. U.N.G.C.T.S-United Nations Global Counter-Terrorism Strategy U.S.A- United States of America. iv ABSTRACT. Counter terrorism measures and their impacts on human rights have remained a burning issue in Kenya and the world at large in relation to human rights and security. The issue of terrorism is one of the main grave security concerns of the world. Kenya is one of the many countries that have been greatly affected by the problem of terrorism hence the need of better counter-terrorism legislation and policies. This research will focus on how human rights can be upheld in the fight towards eradicating terrorism. The paper mainly focuses on the impacts of counter terrorism measures on human rights. This research will seek to look at the various counter terrorism instruments which are currently in place in Kenya as well as analyze and try to determine whether the counter terrorism procedures and measures adopted can be reconciled with human rights. It will also move a step further and carry out a comparative study based on the United Kingdom‘s counter terrorism instruments and mechanism adopted by its government. The desktop analytical research of available secondary sources; which includes books, journals, articles, internet, treaties, conventions and case study shall be the most preferred method for carrying out this research. This research will rely on the secondary sources of data such as relevant authoritative textbooks, relevant legal articles, newspapers, articles and special reports as well as the extensive use of the internet with well outlined web pages. The main tools of carrying out this research therefore are the internet, periodicals and books. The adoption of these methods is due to easy accessibility to the research material, time factor as well as low cost in using the said methods. As will be revealed in this paper, respect for human rights is not conflicting with the struggle against terrorism, but rather complements and can contribute to the success of that struggle. Indeed, when human rights have been violated to combat terrorism, courts have tended to invalidate government actions and overturn convictions. This provides ample evidence that a strategy will not be successful in the long run if it does not comply with human rights standards. It is a finding in this paper that National counter terrorism efforts must also involve the judiciary even more to ensure that such measures are not left entirely to the whims and caprices of the executive. Kenya should also make a step to undertake an immediate and comprehensive review of its anti-terrorism legislation to ensure that it conforms with international human rights standards. As is going to be explained throughout this study, respect for human rights is not at odds with the struggle against terrorism, but can contribute to the success of that struggle. v CONTENTS De laratio ……………………………………………………………………………………………………………………………………………….i Dedi atio ……………………………………………………………………………………………………………………………………………….ii A k o ledge e t………………………………………………………………………………………………………………………………….iii List of A re iatio s……………………………………………………………………………………………………………………………….i A stra t………………………………………………………………………………………………………………………………………………….. CHAPTER ONE ........................................................................................................................................... 8 General Introduction..................................................................................................................................... 8 1.1 Introduction ............................................................................................................................................. 8 1.2 Background to the study ..................................................................................................................... 8 1.3 Literature review ............................................................................................................................... 10 1.4 Problem Statement ............................................................................................................................ 12 1.5 research question ............................................................................................................................... 13 1.6 Basic theory behind the study ........................................................................................................... 14 1.7 Research Methodology ..................................................................................................................... 15 1.8 Chapter Breakdown .......................................................................................................................... 15 CHAPTER TWO ........................................................................................................................................ 17 Critical analyses of the Kenyan counter terrorism instruments. ................................................................. 17 2. Introduction ............................................................................................................................................. 17 2.1 An analysis of the Kenyan Prevention of Terrorism Act. ..................................................................... 17 2.2 Are the definitions fully definitive? ...................................................................................................... 18 2.3 Trial of terrorists ................................................................................................................................... 22 2.3.1 The right to a fair trial .................................................................................................................... 23 2.3.2 Is the right to fair trial absolute? .................................................................................................... 24 2.4 Conclusion ............................................................................................................................................ 26 CHAPTER THREE .................................................................................................................................... 27 International and Regional Frameworks for Combating Terrorism and a comparative with the United Kingdom‘s instruments. .............................................................................................................................. 27 3.1 Introduction ........................................................................................................................................... 27 vi 3.2 International Framework for Combating Terrorism ............................................................................. 28 3.2.1The Role of the UN Security Council in Combating Terrorism ..................................................... 29 3.2.2 The UN General Assembly and Counter Terrorism. ..................................................................... 30 3.3 Regional Framework for Combating Terrorism in Africa .................................................................... 31 3.3.1 OAU Convention on the Prevention and Combating of Terrorism ............................................... 32 3.3.2 A.U Plan of Action on the Prevention and Combating of Terrorism in Africa. ............................ 34 3.3.3 Protocol to the OAU Convention on the Prevention and Combating of Terrorism ....................... 34 3.3.4 The AU Peace and Security Council.............................................................................................. 36 3.3.5 The African Commission on Human and Peoples‘ Rights. ........................................................... 36 3.3.6 Other Regional Instruments ........................................................................................................... 37 3.4 Does human rights and counter terrorism complement?....................................................................... 38 3.5.2 United Kingdom‘s Legal Response to Terrorism ............................................................................ 41 3.5.3 Developments in anti-terrorism legislation in Britain since the year 2000 .................................... 42 3.5.4 Human Rights under the UK Terrorism Act of 2000 ..................................................................... 44 3.6 Conclusion ............................................................................................................................................ 45 CHAPTER FOUR....................................................................................................................................... 46 Conclusion and Recommendations ............................................................................................................. 46 4.1 Conclusion ............................................................................................................................................ 46 4.2 Recommendations ................................................................................................................................. 47 Bibliography. .............................................................................................................................................. 49 List of books. .............................................................................................................................................. 49 List of International legal Instruments. ....................................................................................................... 51 List of Journals and reports. ........................................................................................................................ 53 List of National legal Instruments ............................................................................................................... 53 vii CHAPTER ONE General Introduction 1.1 Introduction Kenya and the world at large have seen itself treated to various grievous and inhuman acts of terrorism and of which has claimed a good number of lives. Just recently, Kenya got itself at the center of one of the grievous attacks the country has seen in the recent years; the Westgate mall attack. In dealing with this vice, States have seen it imperative to employ all measures at their disposal in the name of counter terrorism. Such measures have also been seen to go beyond just counter terrorism but also a war against Islamism. As Graham E Fuller puts it, Islamism when understood as a political movement, Islamism appears in different shades: Today one encounters Islamists who may either be viewed as radical or moderate, political or apolitical, violent or quietist, traditional or modernist, democratic or authoritarian. The oppressive Taliban of Afghanistan and the murderous Algerian Armed Islamic Group [known by its French acronym, GIA] lie at one fanatic point of a compass that also includes Pakistan‘s peaceful and apolitical preaching-to-the-people movement, the TablighiJamaat; Egypt‘s mainstream conservative parliamentary party, the Muslim Brotherhood; and Turkey‘s democratic and modernist Fazilet/Ak Party.1 1.2 Background to the study Counter terrorism measures and their impacts on human rights have remained a burning issue in Kenya and the world at large in relation to human rights and security not just since 11th September, 2011 when terrorists attacked United States of America (USA). In Kenya, it‘s since the 7/8/1998, when although the attack was on the American Embassy in Nairobi, it remains a 1 See Graham E. Fuller, The Future of Political Islam, (2002) 48- 49. 8 fact that it was in Kenyan soil. Following these events, a good number of resolutions have been passed by the United Nations Security Council.2 These resolutions called for a planned and determined campaign by the sates to prevent and combat terrorism. The United Nations High Commissioner for Human Rights (UNCHR) says that ‗although similar events have not been experienced by each individual country…the human cost of terrorism have been felt in virtually every corner of the globe.‘3 Africa as a continent not excluded from the above, under the Organization of African Unity (OAU) currently the African Union (AU), took a bold step in combating terrorism when they adopted the pioneering resolutions in 19924 and 19945. However, despite the existence of these two resolutions, it is the 1998 bombings of the American Embassies in Kenya and Tanzania that clearly brought to light the seriousness of the dangers that terrorism possesses to the peace, stability and security of the African states. With this reality in mind the OAU, in 1999, adopted the OAU Convention on the Prevention and Combating of Terrorism. The AU in 2004, in a move to show that it was part of the world move to combat and eradicate terrorism in 2004 adopted the Protocol to the OAU Convention on the Prevention and Combating of Terrorism 2004.6 The Protocol indirectly advised and allowed state parties to take all necessary measures to protect populations within their territories from acts of terrorism. Kenya too in October, 2012 had the then president assent to a bill that was meant to combat terrorism.7 2 The UN Security Council Resolutions 1368, 1373 and 1377 of 2001, 1390 of 2002, 1455 and 1456 of 2003 and 1526 of 2004. 3 Office of the United Nations High Commissioner for Human Rights, Fact Sheet No 32, Human rights, terrorism and counter terrorism (2008) 1. 4 Resolution on the Strengthening of Co-operation and Coordination among African States. 5 Declaration on a Code of Conduct for Inter-African Relations. 6 C Heyns & M Killander OAU Convention on the Prevention and Combating of Terrorism (1999/2002) (eds) Compendium of key human rights documents of the African Union (2007)78. 7 The Prevention of Terrorism Act, 2012. 9 1.3 Literature review Counter terrorism and its impacts on human rights have seen itself accorded a lot of attention across the world. However, as far as African and specifically Kenya is concerned, the scope has not been as extensive as it ought to be. However, it is imperative to appreciate those works that have seen limelight in this scope by looking on the extent to which they reached in dealing with this topic. Botha and Goredema, in African Commitments to combating Organized Crime and Terrorism,8 clearly indicated that Africa recorded 6,177 casualties from 296 acts of terrorism between 1990 and 2002. Based on the above facts, Viljoen, in International human rights law in Africa highlights the need for discussion on terrorism as a ‗manifold threat to human rights in Africa.‘9 This work, falls short of the extensive discussion on this topic as it only briefly does so. Other authors have on the other hand argued in support for an African approach to combating the vice of terrorism. In support of this stand, Kanu10 in the African Union argues that this can be effectively achieved by tackling the root causes such as poverty, underdevelopment and inequality. He further argues that these are the factors that lead to despair, frustration, anger and alienation especially to the youths who, rightly or wrongly believe that they have no stake in the society and are thus exploited by terrorists. This work by Kanu however falls short of discussing the impacts of counter terrorism on human rights in Africa and the world. 8 C Goredema and A Botha, Africa Commitments to Combating Organised Crime and Terrorism: A review of Eight NEPAD Countries (2004) 51. 9 F Viljoen, International human rights law in Africa (2007) 298. 10 AI Kanu, The African Union’ in G Nesi (ed)International Cooperation in Counter-Terrorism: The UN and Regional organizations in the fight against terrorism (2006) 175. 10 There have however been some works that have forged a head to discuss the need for striking a balance between counter terrorism measures and human rights. One of such works is Human rights and Terrorism by P. Hoffman. It furthers the argument that war on terror undermines the very values it seeks to protect if it is waged without respect to the rule of law and human rights. 11 Human Rights after September 11 on the other side makes a step in examining the legal ambiguities surrounding the international counter terrorism measures and indeed reaches to a finding that it has created an opportunity for governments to evade responsibility and legal accountability for violation of human rights that comes as a result of such efforts if unmonitored.12 Talbot, after considering the need for the balancing of these two competing needs, counter terrorism and human rights, submits that some restrictions on civil liberties though deplorable, can be effective in counter terrorism terms if the goals are the aversion of immediate casualties and or punishing terrorist offenders.13 He however warns that allowing the scales to fall significantly against the protection of civil liberties frequently produces a legacy of counter terrorism ineffectiveness as hostility; violence and terrorism grow within this abusive culture. In a paper titled, ‘United Nations Human Rights Standards as Framework conditions for AntiTerrorism Measures’, Bourloyannis-Vrailas warns of the dangers that comes along with the acceptance of terrorism as anti-human rights and hence allowing counter terrorism measures to be of negative effects to human rights.14 As Patricia Mbote and Migai Akech notes, the Kenyan system is flawed, especially concerning its investigatory and prosecutor methods, which are found in the criminal-procedure act. They P Hoffman, ‗Human Rights and Terrorism‘ (2004) Human Rights Quarterly Vol. 26 No 4, 932-934. International Council on Human Rights Policy, Human rights after September 11 (2002) 19. 13 R Talbot and J Strawson(Ed), ‗the balancing act: counter terrorism and civil liberties in British anti-terrorism law‘, Law after Ground Zero (2002) 123. 14 W Benedek & A Yotopoulos-Maragopoulos (eds) Anti-Terrorist Measures and Human Rights (2004) 24 . 11 12 11 point out that the system is characterized by ―wide but unregulated discretionary powers.‖15 According to them, law enforcers have at their disposal the authority to arrest or not to arrest; to detain or not to detain; to investigate or not to investigate; to charge or not to charge; and to prosecute or not.16 1.4 Problem Statement The issue of terrorism is one of the main grave security concerns of the world. Kenya is one of the many countries that have been greatly affected by the problem of terrorism hence the need of better counter-terrorism legislation and policies. After a decade of attempts for a better anti-terrorism legislation, the Kenyan parliament finally passed the 2012 Prevention of Terrorism Act. The research paper evaluates the sufficiency of the criminal justice system and the Prevention of Terrorism Act 2012 in combating Terrorism. The research will also focus on the impact of counter-terrorism measures on human rights. The 2012 Prevention of Terrorism Act marks a great improvement, especially in safeguarding the rights of persons and entities. Under international law it‘s required that counter-terrorism measures should not violate human rights. The UNCHR acknowledges that the measures taken and or adopted by states in countering terrorism have always in themselves posed serious challenges to human rights and the rule of law.17This has been one of the biggest problems that have prevented Kenya from having a sufficient counter-terrorism legislation that could oversee the demise of terrorism in the country and one that should protect human rights. 15 Patricia K. Mbote and Migai Akech, Kenya: Justice Sector and The Rule of Law available at <www.afrimap.org/..../MAIN%20Report%20Kenya%20Justice%20web.pdf> at 26 October 2013 16 Ibid. 17 Supra note 3. 12 The 9/11 attacks ―and the subsequent war on terrorism brought to light issues that have in the past lurked in a dark corner at the edge of the legal universe, such as how a constitutional regime should respond to violent challenges.‖18 Some scholars argue that: … respecting liberty to the full extent will jeopardize the discretionary power which the government needs to guarantee security, and that sacrificing some of our freedoms and rights is a small offer to bring for our security.19 This sentiment has left governments, including Kenya, in a dilemma on whether to ―trade human rights for security.‖20 Through a critical analysis of the Kenyan criminal justice system and making a comparison with other relevant jurisdictions, the study intends to identify the sufficiency of the Kenyan system with regards to counter terrorism and human rights as well as pointing out the challenges that are encountered in the implementation of the Prevention of Terrorism Act of 2012. The Republic of Kenya‘s criminal-justice system consists of laws, the courts, the police, and the prisons department. 1.5 research question The main question that this study will seek to address is whether the Prevention of TerrorismAct of 2012 is an effective legislation in combating terrorism and the possibility to effectively combat terrorism in Kenya and still remain to ensure the protection and respect of human rights under the Kenyan legal system. Ian Brownlie, ―Interrogation in Depth: The Compton and Parker Reports,‖ Modern Law Review, no. 35 (1972), 501, cited in Charles Lenjo Mwazighe,’Legal Responses to Terrorism: Case Study ofThe Republic of Kenya<www.dtlc.mil/dtic/trl..../u2/a574555.pdf>accessed 25 Oct 2013. 19 Transnational Terrorism Security and The Rule of Law, ―The Ethical Justness of European Counterterrorism Measures,‖ cited in Charles Lenjo Mwazighe,’Legal Responses to Terrorism: Case Study ofThe Republic of Kenya available at<www.dtlc.mil/dtic/trl..../u2/a574555.pdf>accessed 25 Oct 2013. 20 Ibid. 18 13 The study shall also look into: a) What International and regional standards and frameworks exists in regards to combating terrorism? And how does Kenya adhere to them? b) Do counter terrorism measures and protection of human rights conflict or complement? c) What impacts does counter terrorism measures in Kenya have on human rights? 1.6 Basic theory behind the study Human rights are always an integral part of a democratic state hence the framework for social and economic policies. These rights are always the basis of the preservation of a person‘s dignity and the promotion of social justice. When therefore a state derogates human rights in the name of tackling terrorism, it becomes an illegality as such rights always belongs to individuals and are not always granted by the state.21 It has been observed by UNHCR that most counter terrorism measures adopted by states have always posed serious challenges to human rights and the rule of law.22 On the other side, the Eminent Jurists Panel of the ICJ is of the view that counter terrorism is in itself human rights since the state has a responsibility to protect people within its territory from terrorism.23 These two conflicting views call for the need for a balance between counter terrorism and human rights. In this study, the struggle approach of human rights and a naturalist school of thought is most preferred. As Hyens connotes: …human rights may be captured in the expression human rights/ legitimate resistance, indicating that they are seen as two sides of the same of the same coin and that behind 21 The Constitution of Kenya, article 19(3). Fact Sheet No 32, Human rights, terrorism and counter terrorism, Office of the United Nations High Commissioner for Human Rights (2008) 1. 23 Assessing Damage, Urging Action,Report of the Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights (EJP Report) (2009) 16. 22 14 human rights claims there is the possibility, if there are no reasonable alternatives, of resorting to self-help; and conversely, that for self-help to be legitimate, it must be the only option to protect human rights.24 It is always a heavier task to try and establish what amounts to justice but it is easier to establish an injustice, hence the need for one to work his way out by starting from human wrongs to human rights. The struggle theory is one that emphasizes the creative role of human beings in establishing human rights hence furthering the argument that human rights does not exist outside time and circumstances. 1.7 Research Methodology The most preferred method for this study will be desktop analytical research of available secondary sources; which includes books, journals, articles, internet, treaties, conventions and case study. The main tools of carrying out this research therefore are the internet, periodicals and books. The adoption of these methods is due to easy accessibility to the research material, time factor as well as low cost in using the said methods. Unlike secondary methods, primary methods of research such as interviews, use of questionnaires and observations are rather time consuming. This is in consideration of the time available to undertake the research. This therefore renders the desktop analytical method the most preferred for this work. 1.8 Chapter Breakdown This study shall be undertaken in four chapters. Each chapter shall be dedicated to answering one or more of the research questions. The current chapter shall be chapter one and shall be 24 A Soeteman(ed) Law and pluralism (2001), 171-190. 15 Introductory in nature containing the background of the study, the theory behind the study, the problem statement, the research question and the chapter breakdown. Chapter two will contain a critical analysis of the Prevention of Terrorism Act of Kenya and the Kenyan criminal justice system with the objective of looking into the compatibility of this law with Human rights. Chapter three shall be dedicated to assessing the regional and international standards and frameworks that exists in regards to combating of terrorism and to what extent does the Kenyan legal regime adhere to them. It shall also check into the question as to whether human rights and counter terrorism conflict or complement one another. This chapter shall also look at the exceptional circumstances when counter terrorism is exempted from the rule against derogation of human rights and the remedies that exist when a state violates human rights in the name of counter terrorism. This chapter shall also contain a comparative study based on a few relevant jurisdictions. This includes an overview of the measures that states have undertaken to counter terrorism in international law. Chapter four shall contain the recommendation and conclusion. This chapter seeks to give viable recommendations on how and what Kenya should do so as to have better counter-terrorism legislation and policies. 16 CHAPTER TWO Critical analyses of the Kenyan counter terrorism instruments. 2. Introduction In order to fulfil their obligations under human rights law, to protect the life and security of individuals under their jurisdiction, states have a right and a duty to take effective counterterrorism measures, to prevent and deter future terrorist attacks and to prosecute those that are responsible for carrying out such acts. At the same time, the countering of terrorism poses grave challenges to the protection and promotion of human rights.25 2.1 An analysis of the Kenyan Prevention of Terrorism Act. The principal objective of the Prevention of Terrorism Act 2012 was among other things to establish a legal framework for the detection, prevention and investigation of terrorist acts. It also creates offences for the commission of terrorist acts and related offences. It is therefore the main instrument that deals with counter terrorism in Kenya. The act is divided into six parts which includes the following. Part one of the act provides for the preliminary provisions, the short title and interpretation of terms used in the Bill. Part two outlines the procedure for the declaration of an entity as a specified entity, the revocation of the declaration as well as the procedure to be followed on appeal against the declaration by an aggrieved entity. 25 Fact Sheet No 32, Human rights, terrorism and counter terrorism, Office of the United Nations High Commissioner for Human Rights (2008), 8-9. 17 Part three creates offences for the commission of terrorist acts, recruitment and training of and the issuance of directions to a terrorist group. It also makes it an offence to obstruct any officer carrying out his duties under the Act, intimidate witnesses, issue false information, hoaxes and incite other persons to commit an offence under this Act or kidnap or take hostages pursuant to an offence under the Act. Part four outlines the process of investigating offences under the Act. It confers power on an officer under the Act to gather information and intercept communication upon obtaining an order of the Court in accordance with the specified procedure. Part five deals with the trial of offences in Kenya and confers jurisdiction on the Kenyan Courts to deal with offences committed within Kenya or outside Kenya where the offence is committed by a Kenyan or person ordinarily resident in Kenya or against a Kenyan or property owned by the Government or to compel the Government to act or refrain from a particular act. Part six contains miscellaneous provisions. It imposes a duty on a person to disclose information relating to terrorist acts, terrorist property and also establishes the Compensation of Victims of Terrorism Fund. It also confers powers on the Court to make an order seizing or restraining property or forfeiting property owned or controlled by a terrorist group or intended to be used for the commission of a terrorist act, to the State. It also confers on the Cabinet Secretary the power to make an order prohibiting persons from making available, funds to a person who has or is likely to commit a terrorist act as well as the power to make regulations under the Act. 2.2 Are the definitions fully definitive? The Prevention of Terrorism Act of Kenya contains a long list of broad activities which would constitute a terrorist act when carried out for the purpose of ‗influencing the Government or intimidating the public or a section of the public and for a political, religious, social or economic 18 aim‘ and is done ‗‘indiscriminately without due regard to the safety of others property.‘ 26 These activities include the use of violence against a person, endangering the life of a person other than the person committing the action, creating a serious risk to the health or safety of the public or a section of the public, an act resulting to a serious damage to property, an act involving the use of firearms or explosives, releasing of any dangerous, hazardous, toxic or radioactive substance or microbial or other biological agent or toxin into the environment, interfering with an electronic system resulting in the disruption of the provision of communication, financial, transport or other essential services, interfering or disrupting the provision of essential or emergency services and .prejudices national security or public safety.27 This broader definition still falls short of reflecting the current and contemporary issues regarding terrorist act in the world of developing technology. Cyber terrorism is one that the act fails to classify as an act of terror. Dorothy E. Denning in her testimony before the Special Oversight Panel on Terrorism (Denning, 2000), makes the following statement as an attempt to define cyber terrorism: Cyber terrorism is the convergence of terrorism and cyberspace. It is generally understood to mean unlawful attacks and threats of attack against computers, networks, and the information stored therein when done to intimidate or coerce a government or its people in furtherance of political or social objectives. Further, to qualify as cyber terrorism, an attack should result in violence against persons or property, or at least cause enough harm to generate fear. Attacks that lead to death or bodily injury, explosions, plane crashes, water contamination, or severe economic loss would be examples. Serious attacks against critical infrastructures could be acts of cyber terrorism, depending on their 26 27 The Prevention of Terrorism Act, 2012. Section 2. Ibid. 19 impact. Attacks that disrupt nonessential services or that are mainly a costly nuisance would not.28 It might however prove to be an uphill task for one to try and differentiate between cybercrime and cyber terrorism. Just as Denning further elaborates: …to understand the potential threat of cyber terrorism, two factors must be considered: first, whether there are targets that are vulnerable to attack that could lead to violence or severe harm, and second, whether there are actors with the capability and motivation to carry them out.29 By using these factors, one can easily try and differentiate the two aspects of cybercrime and cyber terrorism. Therefore, the primary difference between a cyber-attack to commit a crime or to commit terror is found in the intent of the attacker and it is possible for actions under both labels to overlap. If the definition given by Denning30 is adopted it elucidates the fact that cyber terrorism is limited to issues where the attack is against computers, networks, and the information storied therein which is subsequently not included as one of the acts that the Kenyan Prevention of Terrorism classifies as an act of terrorism.31 The Act also makes it a crime to run a ‗terrorist organisation‘ or an organisation that promotes, publishes and disseminates news or materials that promote terrorism.32 It also provides for a 28 Denning, Dorothy E, Cyber terrorism: Testimony before the Special Oversight Panel on Terrorism available at <http://www.cs.georgetown.edu/~denning/infosec/cyberterror.html> at 24 Jan 2014. 29 ibid. 30 Supra note 4. 31 Supra note 2, section 1(2) (1). 32 Supra note 2, section 25. 20 ‗wide accomplice, attempt, conspiracy and accessory liability.‘ 33 The Kenyan Act further criminalizes membership, support or assistance to a terrorist organisation and also makes it an offence to contribute property, funds or any other resource to a terrorist organisation.34 The definition of a terrorist act and those activities that it criminalises, as outlined in the prevention of terrorism act can be said to be broad and far reaching. It therefore seems to be undermining the field of human rights as guaranteed under the Constitution of Kenya and the international instruments that also forms part and parcel of the laws of Kenya as provided for under the Constitution.35 The provisions of the Prevention of Terrorism Act, tends to clamp down on freedom of expression and the freedom of association.36 It can be interpreted to translate an ordinary civil demonstration or protest which obstructs transport or closes a public service into a terrorist act. The punishments prescribed for terrorist offences under the Act also cause grave concern for their human rights implications. The Act makes life imprisonment a mandatory sentence for acts of terrorism which result in death,37 while prescribing a sentence of not more than thirty years for lesser forms of terrorism.38 The regime of life sentence in Kenya is one that borders absurdities born out of the confusing laws and various court decisions. The Penal Code provides that a court can sentence the offender to a shorter term than the maximum provided by any written law and that the court can pass a sentence of a fine in addition to or in substitution for imprisonment except where the law CH Powell ‗Terrorism and governance in South and Eastern Africa‘ in VV Ramraj et al (eds) Global AntiTerrorism: Law and Policy, (2005) 574. 34 Supra n 2, Section 5-11. 35 The Constitution of Kenya, Article 2(5),(6). 36 Supra note 2, Section 2. On the definition of a terrorist act. 37 Supra note 2, Section 4(2). 38 Supra note 2, section 4(1). 33 21 provides for a minimum sentence of imprisonment.39 The discretionary powers of the trial court therefore remain wide when sentencing. When faced with the question of what does life sentence entail when imposed, the Court of Appeal in the case of Fred Michael Bwayo vs. Republic, the court held: There is of course, a whole debate about what life imprisonment is about although it is less of a debate where the sentence is a minimum one as in the Sexual Offences Act. The prisoner will simply spend the whole of his life in prison. There is no prospect of release even in future, no matter how distant.40 2.3 Trial of terrorists The Kenyan Prevention of Terrorism Act bestows upon the executive a wide variety of powers. The Act provides that where the Inspector General has reasonable grounds to believe that an entity has committed or prepared to commit a terrorist act, he should recommend to the cabinet secretary in charge that an order be made that such an entity is a specified entity. 41 On satisfaction that the reasons given to him by the Inspector General are adequate, the Cabinet Secretary shall by the publication in the Kenya Gazette declare such an entity as a specified entity.42 However, the judiciary is brought to act as a check on the executive by providing for an opportunity to the accused to petition the courts for a judicial review against the decision of the executive. This provision however creates ample space for abuse by the executive, which has a good time span of unfettered powers to take any measures it deems fit against any organisation it disapproves of. This act can be viewed to be derogating human rights in several provisions. 39 The Penal Code, Section 26. Fred Michael Bwayo vs. Republic ( Eldoret Criminal Appeal, no. 130 of 2007). 41 Supra note 2 section 3 (1). 42 Supra note 2, sec 3(2). 40 22 2.3.1 The right to a fair trial The right to a fair trial is one which is embodied in the Constitution of Kenya 43 and subsequently in the International Convention on Civil and Political Rights.44 This rights sets out guarantees in relation to both criminal and civil proceedings including administrative actions. To give this right a restrictive interpretation would not correspond to the aim and purpose of the right to a fair trial,45 since the protection of procedural due process is not, in itself, sufficient to protect against human rights abuses but it is the foundation stone for ―substantive protection‖ against state power. The Prevention of Terrorism Act of Kenya is one that can be appraised for attempting to adhere with the internationally accepted human rights norms. This however does not mean that it is all inclusive; it does at some point falls short. The Constitution of Kenya provides that an accused person has the right to ‗… be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed.‘46 However, the Prevention of Terrorism Act has provisions that erode this constitutional requirement. National security is placed on a higher scale at the expense of this human right. The Prevention of Terrorism Act provides that: The Court may, on the application of the Cabinet Secretary, consider any evidence or information adduced by him before the Court in the absence of the applicant or the ,counsel representing the applicant where the disclosure of that information would be prejudicial to national security or endanger the safety of any person.47 43 The Constitution of Kenya, Article 50. International Convention on Civil and Political Rights Article 14. 45 European Court of Human Rights, Delcourt v. Belgium, Application no. 2689/65, 17 January 1970, para. 25. 46 Supra note 19, Article 50(2) (f). 47 Supra note 2, section 3 (8). 44 23 This provision of the Prevention of Terrorism Act denies the accused, in this case a specified entity,48 the right to justly and adequately respond to the allegations placed against it by the Cabinet Secretary. If this is so found, then other rights of the accused persons are also prejudiced. This is because the right to fair trial is one that not only ensures that individuals are not unjustly punished under criminal law, but is also indispensable in the protection of other rights that are put at stake by the act like the freedom of association. 2.3.2 Is the right to fair trial absolute? The right to fair trial is absolute and is among those right and fundamental freedoms that may not be limited in Kenya.49 The constituents of the right to fair trial are sometimes subjected to public interest. It is however essential to note that any attempt to limit the constituent elements of the right to a fair trial should be differentiated from the approach taken to qualify rights such as freedom of expression and privacy. The latter rights are intended to be balanced between the right, on the one hand, and the community‘s interest, on the other, or in relation to competing rights.50 It is less clear whether it is appropriate to limit fair-trial rights in cases involving national security and counter-terrorism in particular as projected by the Kenyan Prevention of Terrorism Act. However the European Court in the case of Chahal v. UK appears to have approved of a system in national security cases, where a special counsel is appointed to act in the interests of a fair trial. This counsel sees all the evidence, but the defence does not. That special counsel can therefore, without disclosing that evidence, take instructions from the defence and make 48 Supra note 2, section 2 (1). Supra note 19, Article 25(c). 50 Supra note 19, Article 33(3). 49 24 representations to the court.51 This is a move done so that the defendant is not prejudiced and is placed in a position to rebut those allegations and thus potentially prove his or her innocence. The most derogating section of the Kenyan Prevention of Terrorism Act is section 35 which provides for a long list of rights that can be limited under the act. It provides for the limitation of the right to privacy, the rights of an accused person,52 freedom of expression, freedom of security and the right to property.53 That notwithstanding, the Prevention of Terrorism Act is also appraised to be human rights sensitive in certain instances. Firstly the requirement of ‗reasonable grounds‘ on the part of all officers acting on authority granted to them by the act, perhaps, creates room for judicial oversight.54 Secondly it also opens up for the courts to intervene where an aggrieved party is given the leeway to petition the court.55 The courts are also brought in on a supervisory role as regards to the preservation of human rights. On the power to intercept communication, which in reality is an act that derogates a person‘s right to privacy, the courts have been tasked to put the checks before such an act is carried out by an officer. The Act provides: Subject to subsection (2), a police officer of or above the rank of Chief Inspector of Police may, for the purpose of obtaining evidence of the commission of an offence under this Act, apply ex-parte, to a subordinate Court for an interception of communications order.56 51 Chahal v. UK, paras. 144 and 154. Supra note 19. Article 49(1) (f). 53 Supra note 2, section 35 (3). 54 Supra note 2sections 3(1) (2) (9). 55 Supra note 2, sections 3(6). 56 Supra note 2, section 36 (1). 52 25 Section 37 of the Prevention of Terrorism act also greatly interferes with the right to property. It authorises the Inspector General to seize property where he has reasonable grounds to suspect that any property has been, or is being used for the purpose of committing an offence related to the offences under the act.57 The Inspector General is permitted under the act to seize the property whether or not there is an already on going proceeding as regards to the offence. The act further provides that the Inspector General should within 21 days make an application to the High Court for an order to detain the property.58 On determining such an order, the court must give all interested parties an opportunity to be heard and such an order is meant to be in force for 60 days though can be renewed. The High Court is at leave to release the seized property if it no longer has reasonable grounds for detention or if there is no proceedings instituted in the High Court for an offence under the act with respect to the property.59 The act however protects the Inspector General from any civil or criminal proceedings in relation to a seized property.60 2.4 Conclusion Based on the analysis done in this chapter, it is clearly evident that the Kenya Prevention of Terrorism Act is one that still does not fully respect human rights. It can be said that though 57 Supra note 2 section 37 (1). Supra note 2, section 37 (3). 59 Supra note 2, section 37 (6). 60 Supra note 2, section 37 (7). 58 26 some steps have been taken nationally to criminalise, suppress, prevent and prosecute terrorist activities, these steps are not enough in themselves to deal with the threat of terrorism. The act is not exclusive in its definitions and those acts that comprise an act of terrorism. Just as noted in this chapter, it does not have an express definition that can really be used to qualify a cybercrime as an act of terrorism however grave it is. It leaves the executive with a variety of optional leeway that they can use to derogate human rights. That notwithstanding, it is also worth commending the Kenyan act for regularly involving the judiciary hence ensuring that such measures are not left entirely to the executive. CHAPTER THREE International and Regional Frameworks for Combating Terrorism and a comparative with the United Kingdom’s instruments. 3.1 Introduction As urgent and compelling as the need to counter international terrorism may be, it would be selfdefeating to abandon international laws, norms and values in the ‗war against terror‘. Emphasizing this point, the former UN Secretary General, Kofi Annan observed that ‗terrorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we are handing a victory to the terrorists.‘61 It is, therefore, in line with this conviction to fight terrorism according to the rules governing the international community that various standards for combating terrorism have been set, internationally, regionally and sub regionally. This Chapter examines these standards and how they establish a framework for combating K Annan, ‗A Global Strategy for Fighting Terrorism‘, Keynote address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security on March 10, 2005 available at<http://english.safedemocracy.org/keynotes/a-global-strategy-for-fighting-terrorism.html >(accessed on 21st February 2014). 61 27 terrorism without violating human rights. The chapter also looks at the mechanisms and instruments that have been employed in the United Kingdom. 3.2 International Framework for Combating Terrorism On the 11th of September, 2001, a terrorist attack in the United States of America captured the attention of the entire international community which then prioritized the issue of counter terrorism on the agendas of the United Nations. This then led to the United Nations Security Council adopting a number of resolutions62 geared to deal with the threats posed by terrorist activities and also incorporated the need for states to cooperate in preventing, eliminating and combating terrorism in their various states and regions. The most fundamental resolution was among others, UN Security Council Resolution 1373 (2001) which, amongst other far reaching provisions, established the Counter-Terrorism Committee (CTC).63 Currently there exist 16 international counter terrorism instruments. 64 However, it is worth noting that 12 of these resolutions were adopted by the International Community way back before the terrorist attack in USA and resolution 1773. Presently about ‗two-third of the UN member states have either ratified or acceded to at least 10 of the 16 instruments‘ and perhaps, encouragingly, ‗there is no longer any country that has neither signed nor become a party to at least one of them.‘65 62 United Nations Security Council resolution 1368 of 2001. <http://www.un.org/News/Press/docs/2001/SC7143.doc.htm>; United Nations Security Council resolution 1373 of 2001 <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement>; United Nations Security Council resolution 1377 of 2011 <http://daccess-ddsny.un.org/doc/UNDOC/GEN/N01/633/01/PDF/N0163301.pdf?OpenElement> accessed on 21st February 2014. 63 United Nations Security Council resolutions 1373 of 2001 and 1624 of 2005. <http://www.un.org/en/sc/ctc/> accessed on 21st February, 2014. 64 Links to these instruments are available at < http://www.un.org/en/terrorism/instruments.shtml>accessed on 21st February 2014. 65 UN Security Council Counter-Terrorism Committee ‗International Laws‘, <http://www.un.org/en/sc/ctc/laws.html>accessed on 21st February, 2014. 28 3.2.1The Role of the UN Security Council in Combating Terrorism The most significant contribution of the Security Council to combating international terrorism is the adoption of resolution 1373 of 2001. Through this resolution, the United Nations called upon member states to cooperate in combating terrorism and in preventing and punishing ‗the financing, planning, preparation or perpetration of terrorist acts.‘66 The resolution also contains provisions which include the ‗suppression of the recruitment of terrorists, provision of early warning and information sharing, prevention of the movement of terrorists and of trafficking in arms, explosives and hazardous materials, border controls‘.67 The resolution further enjoins states to become parties to all relevant international counterterrorism instruments and to support efforts in bringing terrorists to justice. 68 It also requires member states to consider their obligations under international law, in particular international human rights and humanitarian law when addressing refugee issues. The United Nation Security Council Resolution 1373 also establishes the Counter Terrorism Committee which is mandated to monitor the implementation of the resolution by member states.69 In 2004, the United Nations Security Council, through Resolution 1535 of 2004 established the Counter-Terrorism Committee Executive Directorate (CTED). The CTED applies a proactive policy on human rights as it was mandated to liaise with the Office of the UN High Commissioner for Human Rights (OHCHR) and other human rights organizations in matters 66 United Nations Security Council resolutions 1373 of 2001, Para 2(e). Ibid, Para 2(g). 68 Ibid, Para 3. 69 Security Council Counter Terrorism Committee ‗Best Practices‘<http://www.un.org/en/sc/ctc/>accessed on 21st February, 2014. 67 29 related to counter-terrorism. A human rights expert was also appointed to the CTED staff to facilitate its work.70 3.2.2 The UN General Assembly and Counter Terrorism. The United Nations General Assembly has had terrorism as one of its main agendas since 1972. The first attempt by the United Nations General Assembly to address terrorism as an international problem came in 1973 by the adoption of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents and in 1979 it adopted International Convention against the Taking of Hostages.71 In an attempt to further strengthen the fight on counter terrorism, the general assembly adopted the Declaration on Measures to Eliminate International Terrorism.72 In 1996, the General Assembly further passed a resolution73 to supplement the 1994 Declaration and established an Ad Hoc Committee to continually address means of developing a comprehensive legal framework of conventions dealing with international terrorism. Since the conception of the Ad Hoc committee, several other instruments have been adopted to address specific types of terrorist activities. These include the 1997 International Convention for the Suppression of Terrorist Bombings, and the 1999 International Convention for the Suppression of the Financing of Terrorism and the International Convention for the Suppression of Acts of Nuclear Terrorism.74 The most significant contributions of the General Assembly to global efforts at combating terrorism came in 2006 when UN member states, under the auspices of the General Assembly, Security Council Counter-Terrorism Committee ‗Human Rights‘ <http://www.un.org/en/sc/ctc/rights.html> accessed on 21st February, 2014. 71 Supra note 5. 72 UN General Assembly Resolution A/RES/49/60. <http://www.un.org/documents/ga/res/49/a49r060.html > accessed on 22nd February, 2014. 73 UN General Assembly Resolution A/RES/51/210. 74 Supra note 5. 70 30 adopted The United Nations Global Counter-Terrorism Strategy. This strategy was adopted as a resolution but with an annexed plan of action. The strategy saw United Nations member states agree on a common approach to eliminating terrorism and thus enhancing national, regional and international counter terrorism efforts. The strategy provided for a wide array of measures to address conditions favourable to the spread of terrorism, to prevent and combat terrorism, to build states capacity and strengthen the role of the UN system in the fight against terrorism and most importantly, to ‗ensure that respect for human rights and the rule of law as the fundamental basis of the fight against terrorism.‘75 3.3 Regional Framework for Combating Terrorism in Africa Considering the continent‘s chequered history of liberation movements, insurgencies, civil wars and militarized democracies, there is the need to find a balance between human security and state security hence the significance of developing a regional framework for combating terrorism in Africa or otherwise African state governments would therefore readily employ supposed ‗counterterrorism‘ measures as cloaks for repressing political opposition and undermining human rights. Thus, like the rest of the world, ‗counter-terrorist measures pose a much greater risk to Africa‘s people than terrorism itself.‘76 As early as 1992 the Organisation of African Union (OAU) adopted the Resolution on the Strengthening of Cooperation and Coordination among African States which called on member states to refrain from supporting and cooperate in combating extremism and terrorism. Later on in 1994, the Declaration on a Code of Conduct for Inter-African Relations was adopted which condemned as ‗criminal‘ all terrorist attacks and activities.77 75 Supra note 5. F Viljoen,International human rights law in Africa (2007) 299. 77 Ibid. 76 31 These two earlier efforts notwithstanding, there exist a number of other recent instruments which sets the basic framework for combating terrorism in Africa. These instruments are as reaffirmed in the Preamble to the 2004 Protocol to the OAU Convention on the Prevention and Combating of Terrorism.78 They are the 1977 OAU Convention for the Elimination of Mercenarism in Africa, the 1999 OAU Convention on the Prevention and Combating of Terrorism, the 2001 Dakar Declaration against Terrorism and the 2002 Plan of Action for the Prevention and Combating of Terrorism. These instruments are discussed below. 3.3.1 OAU Convention on the Prevention and Combating of Terrorism In 2009, the OAU adopted the Convention on the Prevention and Combating of terrorism (AntiTerrorism Convention).79 This convention did set the standard by making an attempt to define the term ‗terrorism‘. It thus defines a terrorist act as: (a) any act which is a violation of the criminal laws of a state party and may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or (ii) Disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or 78Protocol to the OAU Convention on the Prevention and Combating of Terrorism<http://www.jus.uio.no/english/services/library/treaties/04/4-02/au_protocol_terrorism.xml> accessed on 22nd February, 2014. 79 OAU Convention on the Prevention and Combating of Terrorism, 1999, <https://treaties.un.org/doc/db/Terrorism/OAU-english.pdf> accessed on 22nd February, 2014. 32 (iii) Create general insurrection in a state. (b) Any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i) to (iii).80 This being the first bold step in trying to define the term terrorist act, it has however been criticized as providing ‗too broad a brush with which states may colour legitimate political opposition and civil dissent as acts of terrorism.‘81 Nonetheless, the Anti-Terrorism Convention, under article 2, obliges state parties to criminalize and punish terrorist acts in accordance with the Convention. Another controversial provision of the Anti-Terrorism Convention is one which excludes ‗the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination‘ from constituting terrorism.82 This exclusion clause applies even in cases of armed struggles but only when the struggle is against ‗colonialism, occupation, aggression and domination by foreign forces‘.83 This clearly leaves out cases of legitimate internal or domestic dissent or opposition, even against a repressive regime. The Convention provides that ‗political, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act.‘84 However, criticism and the short comings of the Anti-Terrorism Convention notwithstanding, it still remains the foundation instrument which upholds and supports the regional framework for combating terrorism in Africa and is complemented by other regional instruments below. 80 Ibid, Article 1(3). Supra note 16, 300. 82 Supra note 19, art 3(1). 83 Ibid. 84 Supra note 19, Art 3(2). 81 33 3.3.2 A.U Plan of Action on the Prevention and Combating of Terrorism in Africa. The African Union Plan of Action on the Prevention and Combating of Terrorism in Africa, 85 Commonly referred to as ‗Anti-Terrorism Plan of Action‘ was adopted by the Intergovernmental High Level meeting of member states of the African Union in 2002. This plan of action provides for the framework and tactics for combating terrorism and also includes a prerequisite for member states ‗to sign, ratify and fully implement‘ the Anti- Terrorism Convention and ‗all relevant international instruments concerning terrorism.‘86 It further mandates member states to take appropriate measures to improve police, immigration and border control, to bring their judiciary and legislative functions up to speed with the regional counter terrorism framework, to suppress the financing of terrorism in compliance with resolution 1373 and to enhance the exchange of information and intelligence on terrorism related concerns.87 The Plan of Action does acknowledge and adequately involves the Peace and Security Council and the AU Commission, but no mention is made of the African Commission on Human and Peoples Rights.88 3.3.3 Protocol to the OAU Convention on the Prevention and Combating of Terrorism This protocol was adopted in 2004 and is popularly referred to as the Anti-Terrorism Protocol. It was mainly aimed to ensure the effective implementation of the Anti-Terrorism Convention.89 85 Plan Of Action Of The African Union High-Level Inter-Governmental Meeting On The Prevention And Combating Of Terrorism In Africa, Mtg/HLIG/Conv.Terror/Plan.(I),available at<http://bibliotecavirtual.clacso.org.ar/ar/libros/iss/pdfs/oau/PoAfinal.pdf> accessed on 22nd February, 2014. 86 Ibid, para 10. 87 Supra note 25, para 11,12,13,14,19,20,21. 88 Supra note 25, para 16, 17, 18. 89 Anti-Terrorism Protocol, Preamble. Available at <http://www.au.int/en/sites/default/files/PROTOCOL_OAU_CONVENTION_ON_THE_PREVENTION_COMBA TING_TERRORISM.pdf> accessed on 22nd February, 2014. 34 The Protocol establishes a framework by consolidating provisions in the previous counter terrorism instruments. In its preamble, the Protocol reiterates that ‗terrorism constitutes a serious violation of human rights and a threat to peace, security, development and democracy,‘ and that state parties undertakes to ‗take all necessary measures to protect the fundamental human rights of their populations against all acts of terrorism,‘ to ‗become parties to all continental and international instruments on the prevention and combating of terrorism‘ and to ‗outlaw torture and other degrading and inhuman treatment, including discriminatory and racist treatment of terrorist suspects, which are inconsistent with international law.‘90 The protocol further recognises the function of the Peace and Security Council (PSC) in coordinating counter terrorism efforts in the continent and further mandates PSC to establish ‗an information network with national, regional and international focal points on terrorism‘ and also ‗mechanisms to facilitate the exchange of information among parties on patterns and trends in terrorist acts and the activities of terrorist groups and on successful practices in combating terrorism.‘91 However, in spite of the immense opportunities created by the Anti-Terrorism Protocol to effectively address the threat of terrorism in Africa, States parties have been very reluctant to ratify the Protocol, thus even in Kenya it is yet to enter into force. 90 91 Ibid, Art 3 (a), (j) and (k). Supra note 29, Art 4 (f) and 9b). 35 3.3.4 The AU Peace and Security Council The Peace and Security Council was established by the PSC Protocol92 and adopted pursuant to article 5(2) of the AU Constitutive Act, to ‗co-ordinate and harmonise continental efforts in the prevention and combating of international terrorism in all its aspects.‘93 The protocol provide that, in fulfilling its mandates, the PSC is guided by the ‗principles enshrined in the AU Constitutive Act, the UN Charter and the Universal Declaration of Human Rights,‘ but particularly, by other principles including ‗respect for the rule of law, fundamental human rights and freedoms, the sanctity of human life and international humanitarian law‘.94 The Protocol further empowers the PSC to: Ensure the implementation of the OAU Convention on the Prevention and Combating of Terrorism and other relevant international, continental and regional conventions and instruments and harmonize and coordinate efforts at regional and continental levels to combat international terrorism95 To help achieve its mandate, the protocol tasks the PSC to work closely with the United Nations Security Council and other relevant UN agencies96 and the then Pan African Parliament.97 3.3.5 The African Commission on Human and Peoples’ Rights. The African Commission on Human and Peoples‘ Rights (ACHPR) is charged with the responsibility of promoting and protection of human rights in the continent. It is however unfortunate that most regional instrument on terrorism in Africa do not substantially involve the 92 Protocol relating to the Establishment of the Peace and Security Council of the African Union (the PSC Protocol), adopted on 10 July 2002 and entered into force on 26 December 2003. Available at <http://kenyalaw.org/treaties/treaties/277/Protocol-Relating-to-the-Establishment-of-the-Peace> accessed on 22nd February,2014. 93 Ibid, Art 3 (d). 94 Supra note 32, Art 4 (c). 95 Supra note 32, Art 7 (i). 96 Supra note 32, Art 17. 97 Supra note 32, Art 18. 36 African Commission on Human and Peoples‘ Rights (ACHPR) in efforts to prevent, eliminate and combat terrorism. The most express mention of ACHPR is in the PSC Protocol which enjoins the PSC to ‗seek close co-operation‘ with the ACHPR ‗in all matters relevant to its objectives and mandate.‘98 However, the common evident step that has been taken by the ACHPR in relation to counter terrorism and human rights in Africa is in its resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism (2005) wherein it urged states cooperation and compliance with their obligations under the African Charter and other relevant international treaties.99 3.3.6 Other Regional Instruments In 2004, the AU established the African Centre for the Study and Research on Terrorism (ACSRT) as part of its continued efforts to combat terrorism in the continent. The ACSRT is a structure of the AU Commission and the Peace and Security Council and its mandated to sensitize AU members of the threat of terrorism in Africa, provide training and capacity building assistance to member states and enhance cooperation among AU members in the fight against terrorism.100 In 1998 the League of Arab States, which has 9 African states among its 22 members, adopted the Arab Convention for the Suppression of Terrorism. The Convention entered into force in 1999. Also, the Organization of the Islamic Conference, which boasts membership of a number 98 Supra note 32, Art 19. F Viljoen International human rights law in Africa (2007), 302. 100 E Rosand, A Millar & J Ipe Implementing the UN Global Counter-Terrorism Strategy in East Africa (2008) 23. 99 37 of African states as well, adopted the Convention of the Organization of the Islamic Conference on Combating International Terrorism in 1999.101 3.4 Does human rights and counter terrorism complement? The question remains therefore, whether it is possible to ensure human rights protection in this age of counter terrorism? Are human rights and counter terrorism mutually exclusive or are they complementary objectives? Can we have both or must we sacrifice one at the altar of the other? Experts, in answering these questions have written that: …countering terrorism is itself a human rights objective, since States have a positive obligation to protect people under their jurisdiction against terrorist acts. This positive duty on States requires them to prevent, punish, investigate, and redress the harm caused by such acts. At the same time, States must accept that this positive duty to protect applies both to those who may be at risk from terrorism and to those who may be suspected of terrorism. The State has no authority in law to determine that some people do not qualify to have their rights respected.102 Going by the history and development of the concept of human rights it is evident that it all came to exist after experiences of war and conflict. The 1948 Universal Declaration of Human Rights and other instruments of humanitarian law were not products of peace but were forged from the horrific experiences of war. Nowhere and at no time then, is the protection of human rights more important than in these times of insecurity, fear, suspicion and terrorism. In November 2001, a joint statement by the OSCE‘s Office for Democratic Institutions and Human Rights (ODIHR), the UN High Commissioner for Human Rights, and the Council of S Iagwanth & F Soltau, ‗Terrorism and human rights in Africa‘ in Africa and Terrorism, Joining the Global Campaign, Monograph No 74 (2002) 1-2. 102 Assessing Damage, Urging Action, Report of the Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights (EJP Report) (2009) 16. 101 38 Europe reminded governments that: While we recognise that the threat of terrorism requires specific measures, we call on all governments to refrain from any excessive steps which would violate fundamental freedoms and undermine legitimate dissent. In pursuing the objective of eradicating terrorism, it is essential that States strictly adhere to their international obligations to uphold human rights and fundamental freedoms.103 It is therefore possible that acts of terrorism can be countered in ways that uphold human rights standards. In 2005, UN Secretary General, Kofi Annan emphasized that: Human rights law makes ample provision for counter-terrorist action, even in the most exceptional circumstances. But compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates achievement of the terrorist‘s objective — by ceding to him the moral high ground, and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits. Upholding human rights is not merely compatible with successful counterterrorism strategy. It is an essential element.104 Experience from better functioning democracies have shown that when civil liberties are protected, it provides the people with non-violent ways to express political and social frustrations instead of resorting to violence and terrorism. United States Supreme Court Justice Sandra Day O‘Connor, commented in 2004: 103 Joint statement by Mary Robinson, UN High Commissioner for Human Rights, Walter Schwimmer, Secretary General of the Council of Europe, and Ambassador Gerard Stoudmann, Director of the OSCE Office for Democratic Institutions and Human Rights, 29 November 2001, at <http://www.unhchr.ch/huricane/huricane.nsf/view01/4E59333FFC5341A7C1256B13004C58F5>accessed on 23rd February, 2014. 104 UN (former) Secretary General Kofi Annan, ―A Global Strategy for Fighting Terrorism‖, Keynote address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security, 8-11 March 2005, Madrid, available at<http://summit.clubmadrid.org/keynotes/> accessed on 23rd February, 2014. 39 It is during our most challenging and uncertain moments that our Nation‘s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.105 In 2002, the Council of Europe Secretary General, Walter Schwimmer, also pointed out that: The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the State has the right to employ its full arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a State to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law. It is precisely in situations of crisis, such as those brought about by terrorism, that respect for human rights is even more important and that even greater vigilance is called for.106 3.5 Comparative Analysis: A Look at Other Countries Legal response To Terrorism 3.5.1 Introduction There is an increasing need by countries to take appropriate measures against the rising threat of international terrorism. The terrorist attacks on September 11, 2001107 and other major terrorist attacks throughout the world demonstrate that in the 21st century, the threat of terrorism has US Supreme Court, Hamdi v. Rumsfeld, (03-6696) 542 U.S. 507 (2004), Opinion of O‘Connor, J. available at <http://www.supremecourt.gov/oral_arguments/argument_transcripts/03-6696.pdf> accessed on 23rd February, 2014. 106 Preface to the CoE Guidelines on human rights and the fight against terrorism, (Council of Europe Publishing, Strasbourg, June 2004). 107 The September 11 attacks (also referred to as September 11, September 11th, or 9/11) were a series of four coordinated terrorist attacks launched by the Islamic terrorist group al-Qaeda upon the United States in New York City and the Washington, D.C. metropolitan area on Tuesday, September 11, 2001. 105 40 become real and acute, hence cannot be ignored. States are thus faced with a serious challenge on how to fight terrorism effectively and uncompromisingly without affecting human rights and basic freedoms of the people which are the most essence of democracy. 108 This challenge is most pronounced in the legal arena when the executive branches of democratic countries pass laws that empower the countries' security forces to take tough and invasive measures as part of the war on terror.109 In most cases this has resulted to violation of human rights by these security forces put in place to counter terrorism.110 3.5.2 United Kingdom’s Legal Response to Terrorism Terrorists linked to or inspired by Al Qaida have carried out bomb and gun attacks on British citizens and interests in a number of countries.111 The UK itself has also been targeted. Several terrorist plots involving both British citizens and foreign-born residents of the UK have beenaverted.112 The threat is constantly changing, presenting major challenges for the UK's intelligence and security agencies and the police.113 The Government, Security Service and law enforcement agencies have undertaken a number of measures in response to this threat.114 These include legislative, strategic and organisational reforms, and are intended to provide us with the tools necessary to tackle the immediate threat as well as to address the underlying issues raised by international terrorism.115 108 The Israeli Democratic Institute, Anti-Terrorism Legislation in Britain and the U.S. after 9/11<http://en.idi.org.il/analysis/articles/anti-terrorism-legislation-in-britain-and-the-united-states-after-9-11> accessed on 13th march 2013. 109 Ibid. 110 Ibid. 111 The Security Service, International Terrorism and the UK< https://www.mi5.gov.uk/home/thethreats/terrorism/international-terrorism/international-terrorism-and-the-uk.html> accessed on 17th march 2013. 112 Ibid. 113 Ibid. 114 Ibid. 115 Ibid. 41 3.5.3 Developments in anti-terrorism legislation in Britain since the year 2000 Over the years, Britain has coped with the terrorist attacks committed against it by passing antiterrorism legislation.116 In the 20th century, Britain passed emergency legislation to deal primarily with the violent conflicts between Protestants and Catholics in Northern Ireland and with the Irish Republican Army terrorist attacks.117 However, since the year 2000, and especially since the September 11, 2001 terrorist attacks, Britain's attention has been directed at dealing with the escalating international terrorism.118 In 2000, the British parliament adopted the Terrorism Act.119 This law annulled the British emergency legislation that had been directed primarily at Irish terrorism, and completely revised the legal tools against terrorism in Britain. The Act replaces temporary legislation first passed in the 1970s to combat terrorism in Northern Ireland: the Prevention of Terrorism (Temporary Provisions) Act 1989, the Northern Ireland (Emergency Provisions) Act 1996, and parts of the Criminal Justice (Terrorism and Conspiracy) Act 1998.120 The first innovation included in the Terrorism Act of 2000 is the definition of the term "terrorism" in Section 1 of the law: "terrorism" is the use or the threat of action intended to advance a political, religious or ideological cause, or which was planned with the purpose of intimidating or frightening the public in order to force the government or any other government authority to act or refrain from acting.121 This includes the use of violence against a person, serious damage to property, serious disruption of infrastructures, systems or utilities, or any other 116 Supra note 50. Ibid. 118 Ibid. 119 Terrorism Act of 2000. 120 The Guardian Terrorism Act 2000 . <http://www.theguardian.com/commentisfree/libertycentral/2009/jan/19/terrorism-act> accessed on 17th march 2013. 121 Section 1 of the Terrorism Act. 117 42 act that endangers public health or safety.122 However, there have been claims that this definition is too overbroad and its prone to human rights abuse.The Act criminalises not only acts that are widely understood to be ‗terrorist‘ in nature, but also lawful gatherings and demonstrations as well as many forms of behaviour that, while unlawful, cannot be regarded as ―terrorism.‖123 The Terrorism Act of 2000 also includes provisions for the arrest of persons suspected of involvement in terrorism and provisions regarding search and detention powers.124 Among other things, the law authorizes the arrest, prior to serving an indictment, of persons suspected of involvement in terrorism for up to 48 hours, which may be extended by a judge's warrant for another seven days.125 Part 2 of the 2000 Act allows the Secretary of State to prescribe organisations that he believes to be ‗concerned in terrorism‘.126 Prescribed organisations are listed in Schedule 2 and there are currently 58 organisations enumerated.127 Sections 11 and 12 outlaw membership and support of such organisations. Section 58 provides for collection of Information and creates offences therein.128 The Terrorism Act of 2000, the key anti-terrorism legislation passed by the British in recent years, has led to the arrest of hundreds of people suspected of involvement in terrorism in Britain and of dozens convicted for the offenses it encompasses; but it is not the only anti-terrorism 122 Ibid. The Impact of UK Anti-terror Laws on Freedoms of Association <http://www.article19.org/data/files/pdfs/analysis/terrorism-submission-to-icj-panel.pdf> accessed on 17th march 2013. 124 Ibid . 125 Section 41 of the Act. 126 Part 2 of the Act. 127 Ibid. 128 Section 58 provides that a person is liable to a prison term of up to ten years, to collect or possess "information of a kind likely to be useful to a person committing or preparing an act of terrorism". 123 43 legislation passed in Britain.129 Immediately following the 9/11 terrorist attacks, Britain began developing additional legal tools to confront international terrorism.130 In December 2001, the British parliament adopted the Anti-Terrorism, Crime and Security Act (hereinafter: ATCSA),131 which considerably extended the powers of the British security services in a broad number of areas related to the war on terrorism, including detentions, investigations and surveillance, and to the war on non-conventional terrorism.132 Regarding arrests, Section 4 of the law created a new mechanism that empowered the Minister of Interior to order the administrative detention of foreign nationals (that is, not British citizens or residents) suspected of being international terrorists who threaten Britain's national security and who cannot be deported to their countries of origin.133 3.5.4 Human Rights under the UK Terrorism Act of 2000 In most statutory provisions granting police the power to stop and search, there is a requirement that the police have a reasonable suspicion that the person is in possession of an item of a specified kind (e.g. drugs, a weapon, stolen property).134 Under section 44 of the Terrorism Act 2000, however, a senior police officer may authorize a certain zone as one in which vehicles and pedestrians may be stopped and searched without reasonable suspicion.135 The purpose of section 44 is to enable police to carry out so-called 129 Supra note 50. Ibid. 131 The ATCSA 2001 was passed in response to the events of 9/11 and was aimed at amending the Terrorism Act 2000 and making further provisions concerning terrorism and security. 132 Ibid. 133 Section 4 of the Anti-Terrorism, Crime and Security Act. 134 Students Human Rights Network, Stop and search under the Terrorism Act 2000<http://www.justice.org.uk/pages/stop-and-search-under-the-terrorism-act-2000.html>accessed on 17th march 2013. 135 Section 44 of the Terrorism Act 2000. 130 44 'intuitive' search for items 'of a kind which could be used in connection with terrorism.'136 However, section 45(1) (b) explicitly states that the search power may be exercised, 'whether or not the constable has grounds for suspecting the presence of articles of that kind.137 This is in contravention with article 8 of the European Convention on Human Rights which provides for the right to respect for one's "private and family life, his home and his correspondence," subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society."138 3.6 Conclusion Respect for human rights remains a core issue in the fight against terrorism in Africa and the world at large. It is also evident that a lot of emphasis has been put into providing a framework at international, regional and sub-regional levels, for combating terrorism so as to avoid arbitrariness and abuse of ‗counter-terrorism‘ initiatives. This standards having been put in place, there observance depends on how national governments apply the same at their respective national levels. Some of these International and regional instruments have not been ratified by various state members and therefore despite the efforts made, some of them end up unutilized. Counter-terrorism, security, human rights and law enforcement are not mutually exclusive. In the context of the threat of terrorism, they should be designed to work together. In most circumstances, they cannot work effectively independently of each other. Counter-terrorism measures need human rights standards to ensure that their implementation does not undermine their very purpose, which is to protect and maintain a democratic society. At the same time, human rights standards may need counter-terrorism measures to ensure that human rights can 136 Ibid. Section 45(1)(b) of the Terrorism Act 2000. 138 Article 8 of the European Convention on Human Rights. 137 45 thrive. What is certain is that human rights are not an optional extra or luxury to any counterterrorism strategy; human rights must be at the core of that strategy. CHAPTER FOUR Conclusion and Recommendations 4.1 Conclusion The only fully successful counter-terrorism strategy is one based on the principle that genuine security can only be maintained through thepromotion and protection of human rights. Human rights should, therefore, be mainstreamedinto all elements of The Prevention of Terrorism Act of Kenya. To ensure the effectiveness of thisapproach, counter-terrorism proposals should be carefully examined and regularly reviewedto assess their impact upon all human rights standards and obligations. In the fight against terrorism, human rights standards have been set aside too often in favour of illegal arrests, renditions, torture or inhuman treatment, discrimination and other human rights 46 violations.139 Rights have been further undermined by populist attempts to portray human rights activists or critics of government policies as terrorist sympathizers; the willingness of some decision makers to include diluted human rights standards into policies to make the policies appear acceptable; and an effort to justify some policies as human rights compliant when in fact they are not. All of these trends compromise the true value of human rights. As examined in this paper, respect for human rights is not conflicting with the struggle against terrorism, but rather complements and can contribute to the success of that struggle. Indeed, when human rights have been violated to combat terrorism, courts have tended to invalidate government actions and overturn convictions. This provides ample evidence that a strategy will not be successful in the long run if it does not comply with human rights standards. By giving effect to the human rights principles, those responsible for devising and implementing counter-terrorism strategies in Kenya can be more effective in their efforts and can help ensure the survival of the democratic values that terrorists seek to destroy. 4.2 Recommendations National counter terrorism efforts must always involve the judiciary even more to ensure that such measures are not left entirely to the whims and caprices of the executive. It has been strongly argued that an independent judiciary is one of the key to effective counter terrorism. Terrorism in itself is often fueled by feelings of injustice and the state would be shooting itself in the foot if it sidelines the judicial branch in the fight against terrorism. Thus some experts have observed that: If counter-terrorist measures are to be effective in the long term, they must be seen to be legitimate, and an independent judiciary can contribute to providing that legitimacy. A 139 Ibid. 47 well-operating criminal justice system will deter terrorists, disrupt terrorist networks, catch and punish those who commit crimes, and ensure that any innocent suspects mistakenly caught up in the law enforcement process are rapidly released.140 Kenya should also make a step to undertake an immediate and comprehensive review of its antiterrorism legislation to ensure that it conforms with international human rights standards. As explained throughout this study, respect for human rights is not at odds with the struggle against terrorism, but can contribute to the success of that struggle. Furthermore, the problem faced by states consists in walking the fine line between ―adequate‖ forms of counter-terrorism, compatible with the rule of law on the national and international level, and a ―war on terror‖ that, in its actual conduct, defeats the very antiterrorist purpose. Countries that are committed to uphold human rights and the rule of law everywhere have to accept that their behaviour will be judged according to these standards. This maxim was clearly described in a recent declaration of the Pugwash Conference, where states in their struggle against terrorism, have to apply ―effective but measured responses to neutralize terror groups that neither contravene civil liberties and individual rights nor exacerbate the socio-economicpolitical-religious fissures that are the breeding grounds of terrorists.‖141 Despite reforms enacted under Kenya‘s 2010 constitution, which increased the potential for internal police accountability, there are credible allegations of extrajudicial killings, the beatings of numerous suspects, arbitrary detention, renditions, and the disappearance of some suspects. This was documented in the Open Society Justice Initiative and Muslims for Human Rights 140 Assessing Damage, Urging Action, Report of the Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights (EJP Report) (2009) 21. 141 Pugwash Meeting No. 269, 51st Pugwash Conference on Science and World Affairs: ‗Challenges for Peace in the New Millennium,‘ 12 - 16 March 2002, Agra, India, Report on Working Group II: Transnational Security Issues, Rapporteur: Jeffrey Boutwell, <www.pugwash.org.>accessed on 17th march 2013. 48 (MUHURI).142 The Kenyan government should therefore, thoroughly investigate and prosecute human rights violations by government security, police, and armed forces equally and compensate victims of torture, ill-treatment and arbitrary detention swiftly and adequately. Bibliography. List of books. AI Kanu, The African Union’ in G Nesi (ed)International Cooperation in CounterTerrorism: The UN and Regional organizations in the fight against terrorism (2006) 175. C Goredema and A Botha, Africa Commitments to Combating Organised Crime and Terrorism: A review of Eight NEPAD Countries (2004) 51. C Heyns & M Killander OAU Convention on the Prevention and Combating of Terrorism (1999/2002) (eds) Compendium of key human rights documents of the African Union (2007)78. C Heyns & M Killander OAU Convention on the Prevention and Combating of Terrorism (1999/2002) (eds) Compendium of key human rights documents of the African Union (2007)78. E Rosand, A Millar & J Ipe Implementing the UN Global Counter-Terrorism Strategy in East Africa (2008) 23. 142 We Are Tired of Taking You to Court: Human Rights Abuses by The Kenyan Anti-Terrorism Police Unit. Number 20 of 2013. <http://www.muhuri.org/> accessed on 17th march 2013. 49 F Viljoen, International human rights law in Africa (2007) 298. Graham E. Fuller, The Future of Political Islam, (2002) 48- 49. Ian Brownlie, ―Interrogation in Depth: The Compton and Parker Reports,‖ Modern Law Review, no. 35 (1972), 501, cited in Charles Lenjo Mwazighe,’Legal Responses to Terrorism: Case Study ofThe Republic of Kenya<www.dtlc.mil/dtic/trl.../u2/a574555.pdf >accessed 25 Oct 2013. K Annan, ‗A Global Strategy for Fighting Terrorism‘, Keynote address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security on March 10, 2005 available at< http://english.safe-democracy.org/keynotes/aglobal-strategy-for-fightingterrorism.html >(accessed on 21st February 2014). P Hoffman, ‗Human Rights and Terrorism‘ (2004) Human Rights Quarterly Vol. 26 No 4, 932-934. Patricia K. Mbote and Migai Akech, Kenya: Justice Sector and The Rule of Law available at <www.afrimap.org/..../MAIN%20Report%20Kenya%20Justice%20web.pdf > accessed on26 October 2013 R Talbot and J Strawson(Ed), ‗the balancing act: counter terrorism and civil liberties in British anti-terrorism law‘, Law after Ground Zero (2002) 123. Sunya Kashan, The USA Patriotic Act: Impact on Freedoms and Civil Liberties W Benedek & A Yotopoulos-Maragopoulos (eds) Anti-Terrorist Measures and Human Rights (2004) 24 . 50 List of International legal Instruments. Anti-Terrorism Protocol, Preamble. Available at < http://www.au.int/en/sites/default/files/PROTOCOL_OAU_CONVENTION_ON_THE_PRE VENTION_COMBATING_TERRORISM.pdf> accessed on 22nd February, 2014. Constitutional Rights Foundation, The Patriotic Act< http://www.crf-usa.org/americaresponds-to-terrorism/the-patriot-act.html > accessed on 14th march 2013. Council resolution 1373 of 2001 < http://daccess-ddsny.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdfOpenElement >accessed 22/2/2014. Fact Sheet No 32, Human rights, terrorism and counter terrorism, Office of the United Nations High Commissioner for Human Rights (2008) 1. Fact Sheet No 32, Human rights, terrorism and counter terrorism, Office of the United Nations High Commissioner for Human Rights (2008), 8-9. International Convention on Civil and Political Rights. International Council on Human Rights Policy, ‘Human rights after September 11.‘ International Council on Human Rights Policy, Human rights after September 11 (2002) 19. Nations Security Council resolution 1377 of 2011 <http://daccess-ddsny.un.org/doc/UNDOC/GEN/N01/633/01/PDF/N0163301.pdfOpenElement> accesed on 21st February 2014. OAU Convention on the Prevention and Combating of Terrorism, 1999, < https://treaties.un.org/doc/db/Terrorism/OAU-english.pdf > accessed on 22nd February, 2014. 51 Office of the United Nations High Commissioner for Human Rights, Fact Sheet No 32, Human rights, terrorism and counter terrorism (2008) 1. Plan Of Action Of The African Union High-Level Inter-Governmental Meeting On The Prevention And Combating Of Terrorism In Africa, Mtg/HLIG/Conv.Terror/Plan.(I),available at<http://bibliotecavirtual.clacso.org.ar/ar/libros/iss/pdfs/oau/PoAfinal.pdf> accessed on 22nd Protocol relating to the Establishment of the Peace and Security Council of the African Union (the PSC Protocol), adopted on 10 July 2002 and entered into force on 26 December 2003. Available at < http://kenyalaw.org/treaties/treaties/277/Protocol-Relating-to-theEstablishment-of-the-Peace > accessed on 22nd February,2014. Protocol to the OAU Convention on the Prevention and Combating of Terrorism<http://www.jus.uio.no/english/services/library/treaties/04/402/au_protocol_terrorism.xml> accessed on 22nd February, 2014. Resolution on the Strengthening of Co-operation and Coordination among African States. Security Council Counter Terrorism Committee ‗Best Practices‘< http://www.un.org/en/sc/ctc/ >accessed on 21st February, 2014. The CoE Guidelines on human rights and the fight against terrorism, (Council of Europe Publishing, Strasbourg, June 2004). The UN Security Council Resolutions 1368, 1373 and 1377 of 2001, 1390 of 2002, 1455 and 1456 of 2003 and 1526 of 2004. UN General Assembly Resolution A/RES/49/60. <http://www.un.org/documents/ga/res/49/a49r060.html > accessed on 22nd February, 2014. UN General Assembly Resolution A/RES/51/210. 52 United Nations Security Council resolution 1368 of 2001. < http://www.un.org/News/Press/docs/2001 /SC7143.doc.htm >; United Nations Security United Nations Security Council resolutions 1373 of 2001 and 1624 of 2005. <http://www.un.org/en/sc/ctc/> accessed on 21st February, 2014. List of Journals and reports. Assessing Damage, Urging Action, Report of the Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights (EJP Report) (2009) 16. CRS Report for Congress, International Money Laundering Abatement and Anti- Terrorist Financing Act of 2001, Title III of P.L. 107-56< https://www.epic.org/privacy/financial/RL31208.pdf > accessed on 15th march 2013. Declaration on a Code of Conduct for Inter-African Relations. Denning, Dorothy E, Cyber terrorism: Testimony before the Special Oversight Panel on Terrorism < http://www.cs.georgetown.edu/denning/infosec/cyberterror.html > last accessed on 24 Jan 2014. S Iagwanth & F Soltau, ‗Terrorism and human rights in Africa‘ in Africa and Terrorism, Joining the Global Campaign, Monograph No 74 (2002) 1-2. Transnational Terrorism Security and The Rule of Law, ―The Ethical Justness of European Counterterrorism Measures,‖ cited in Charles Lenjo Mwazighe,’Legal Responses to Terrorism: Case Study ofThe Republic of Kenya< www.dtlc.mil/dtic/trl.../u2/a574555.pdf >accessed 25 Oct 2013. List of National legal Instruments The Constitution of Kenya. 53 The Penal Code. The Prevention of Terrorism Act, 2012. 54