Kenya’s Security Law Act: freedom of expression and media freedom

Protesters confront police over Terror Law passed by Kenyan Parliament, Dec. 2014. Demotix/Reporter#34145. All rights reserved.On
18 December 2014, the Parliament of Kenya passed the Security Act Law. The law,
backed by President Uhuru Kenyatta includes a string of anti-terrorism
measures, some of which potentially have a significant effect on the media’s
ability to collect and disseminate information. On 2 January 2015, the High
Court suspended controversial provisions in the law pending a full examination
of the legislation.

Impact of restrictions
on the work of journalists

Section
61 of the Law amends the Prevention and Terrorism Act (PTA) and expands
restrictions to freedom of expression when it comes to the advocacy, promotion,
advice and facilitation of terrorism. The offence is punishable by a term not
exceeding 20 years. The new section criminalises anyone who publishes or utters
a statement that is likely to be understood as encouraging or inducing another
person to commit an act of terrorism. While Section 30 A (2) offers some
guidance as to what might constitute a statement that is likely to be
understood as directly and indirectly encouraging or inducing another person to
commit or prepare to commit an act of terrorism, the law remains broad and does
not address the issue of journalists reporting on terrorism. In addition, the
new section 30A (3) specifies that the law does not require a crime to
have been attempted or committed.

The vaguely defined
provisions risk being used to limit the speech of journalists working on
terrorism-related issues. Of primary concern is the problem of defining
what is to be prohibited. Does a journalist reporting statements made during an
interview encourage terrorism? Can a journalist reporting on the causes of
terrorism be perceived as advocating for terrorism? Does a report providing
information about the training of jihadists in East Africa provide advice to
Kenyans who would like to commit an act of terrorism? As such, the measures
risk deterring journalists from covering terrorism-related topics and may have
a significant effect on the quality of public debate.

Additional
provisions relating to the interception of communication and other forms of
telecommunications surveillance are of particular interest to journalists and
media houses. Section 56 of the Act, which amends the National Intelligence
Service Act, gives broad powers to the Director General to authorise covert
surveillance, without limiting the use of powers against journalists. Indeed
under the new section, the Director General can authorise covert operations
where he has reasonable grounds to believe that such an operation is necessary
to enable the Service to investigate or deal with any threat to national
security or the performance of any of its functions. Among other things, the
written authorisation issued by the Director General may authorise any member
of the service to: (i) obtain any information, material, record, document or
thing for the purpose of the operation;  (ii) monitor communication; (iii)
install, maintain or remove anything; (iv) do anything considered necessary to
preserve national security. Such measures must be specific and are valid for
180 days. In making the decision, the Director-General is only subject to
guidelines approved in Council. 

This section
makes it possible for security forces to access the phone and data records
of journalists and track down journalist sources without the journalist’s
knowledge and without the necessary safeguard of judicial oversight. A direct
consequence of this section, is that journalists are no longer able to
guarantee confidentiality to sources.

Lawfulness
of restrictions under domestic and international law

In effect, the
Security Law Act has expanded restrictions to freedom of expression to new
areas and permitted state interference with the media in certain circumstances.

The
restrictions also contravene Kenya’s international obligations. Of primary importance is article 19
of the International Covenant on Civil and Political Rights (ICCPR) that
requires signing states to adopt a proportional approach to restriction on
freedom of expression. To comply with Article19 (3) states should satisfy a
three-part test. First the restriction imposed must be provided by law which is
clear and accessible to everyone. Further, it must be proven as necessary
and legitimate to protect the rights or reputation of others; national security
or public order, public health or morals. Finally, it must be proven as the
least restrictive and proportionate means to achieve the purported aim and
to conform to the strict test of necessity and proportionality.

As mentioned
above, many provisions in the law are too broad and do not allow journalists
and media houses to understand what is permissible in matters related to
national security and terrorism.

Moreover, the Security Law Act does not conform to the strict test
of necessity and proportionality.
The broad surveillance powers given the General Director risk undermining the
essence of freedom of expression and as such are not compatible with article 19
(3). Journalists’ sources are crucial to freedom of expression. By failing to
protect journalists’ sources and confidential information the Security Law Act
will limit the capacity of journalists to have access to unauthorised sources
and as a result will limit the capacity of people to have access to independent
information.

Conclusion

While
restrictions on freedom of expression and freedom of the media might be needed
to address the challenge raised by the recent surge of terrorist attacks, the
measures provided by the Security Law Act do not comply with Kenya’s domestic
and international obligations.

Moreover, by
limiting the capacity of journalists to investigate and report on
terrorism-related issues there is a risk that security forces that have been
conferred overarching powers will no longer be accountable to the
public. Kenyan forces have been heavily criticised by Kenyan and
international human rights organisations for the way they responded to the rise
of terrorism. In its latest report Human Rights Watch accuses Kenyan
authorities of extra-judicial killings, arbitrary detentions and torture by
security forces. In a recent
report aired by Al-Jazeera, members of the Anti-Terrorism Police Unit
(ATPU) admitted participating in extrajudicial killings and the forced
disappearance of suspects. The lack of accountability and oversight that might
ensue from the implementation of the Security Law Act can only contribute to this
increase of human rights abuses.