Kenya: High Court ruling on security amendment act a victory for free speech

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Kenya: High Court ruling on security amendment act a victory for free speech - Civic Space

At the printing press of Newsline, staff look at their most recent edition. Charles Kabonero (managing director) and his colleagues had to flee to Uganda after their independent weekly Umuseso newspaper was banned in their native country. Now working in exile in Kampala, Charles and his colleagues started a new newspaper Newsline.

ARTICLE 19 welcomes the decision by the High Court which declared eight sections of Security Laws (Amendment) Act 2014 unconstitutional. ARTICLE 19 was an interested party in the case, which was lodged by the Coalition for Democracy and Reforms, the Kenya National Human Rights Commission, and Samuel Njuguna Ng’ang’a, after President Uhuru Kenyatta signed the controversial Act into the law on December 19, 2014.

“ARTICLE 19 welcomes the decision by the High Court that several sections of the Security Laws (Amendment) Act 2014 are unconstitutional, in particular those which unduly restrict freedom of expression. Kenya must not sacrifice fundamental human rights on the altar of the fight against terrorism,” said Henry Maina, Director of ARTICLE 19 Eastern Africa.

In a victory for free expression, the Court agreed with ARTICLE 19 that:

  • The prohibition on the publication or broadcast of images of dead or injured people, which are “likely to cause fear and alarm in the general public, or disturb the peace”, was disproportionate. The Court found that there was no rational connection between the limitation on publication and the fight against terrorism.
  • The Court further agreed that the criminalisation of the publication or broadcast of information ‘which undermines investigations or security operations” by the national police and defense forces would have a chilling effect on freedom of expression. The Court held that the effect of the prohibition would amount to “a blanket ban on publication of any security-related information without consulting the National Police Service”.

At the same time, ARTICLE 19 is disappointed that the court failed to declare unconstitutional a number of provisions that further expand the surveillance powers of the Kenyan intelligence and law enforcement agencies without sufficient procedural safeguards:

  • The Court considered that it was enough that a court order was required in order to authorise the monitoring of communications or the installation of any device designed to gather information by an intelligence officer. While this is an important safeguard, the new provisions governing the covert activities of the national intelligence services are much weaker than the previous ones, which contained detailed safeguards and required the court to consider the proportionality of the measures sought.
  • ARTICLE 19 is further concerned that the amendments to the Prevention of Terrorism Act muddle the procedure for interception of communications in terrorism cases. The Prevention of Terrorism Act was amended to allow “National Security Organs” to intercept communications for the purposes of detecting or disrupting acts of terrorism in accordance with procedures to be prescribed by the Cabinet Secretary subject to parliamentary approval. While the Court rightly noted that other sections in the PTA contained procedural safeguards, it remains highly unclear how the procedures to be prescribed by the Cabinet Secretary are to operate alongside existing safeguards.

In our submission to the Parliamentary Committee on Security and Administration of Justice, ARTICLE 19 highlighted that the Act contained numerous provisions that are in breach of international human rights standards. In particular, ARTICLE 19 remains concerned that the provision that criminalises the adoption or promotion of “extreme belief systems” for the purpose of “facilitating ideologically based violence to advance political, religious or social change” remains on the statute book.

ARTICLE 19 continues to urge the Kenyan government to refrain from proposing any further laws that would limit freedom of expression and of the media.