Radicalization: Delicate balance between security and Human Rights

By Atunga Atuti O.J.

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

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

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

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

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

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

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

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

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

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

Email: eajournal@email.com

Kenya, Radicalisation and National Security

Radicalisation: Delicate balance between Security and Human Rights

Atunga Atuti O.J.

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

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

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

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

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

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

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

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

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

National Intelligence Bill 2011-Why Kenyans Must reject this Draconian Law

National Intelligence Bill 2011-Why Kenyans Must reject this Draconian Law

National Intelligence Service Bill: Resist this Draconian Piece of Law

by

Atunga Atuti O. J.

It is not lost on Kenyans that once upon a time when we were working on a final draft of the constitution ahead of the referendum some clever fellow who we never got to know inserted the words...subject to National Security...which would have altered the spirit and effect of the Bill of Rights in the New Constitution. What the clever fellow failed to do is now being effect through the back door. This attempt is the NI SBill. The National Security Intelligence Service Bill is a dangerous piece of Law! The provisions of this piece of proposed legislation has been drafted like we never promulgated a new constitution that we never transited from the days of the “nyayo errors” that we never learnt from the lessons of history. We also never learnt from others including the lessons of fumbled American intelligence cook-up that landed entire world in meaningless and endless wars that the world is trying to extricate itself from essentially we never learnt anything!

The National Intelligence service Bill if enacted in its present form will create an Institution operating in its own realm, created on its own former images, opaque in its operations and answerable to none other than itself! All these on our TAXES and in an era when the rest of the world is moving towards democratic control over security agencies.

The Bill seeks to create an institution that that derogates from and claws back the principles of national security as provided in the Constitution. According to the Constitution,  National security shall be premised on  the protection from external and internal threats  to Kenya, her sovereignty, people, their rights, freedoms, property, peace and stability, prosperity and other national interests.  The Constitution further provides that the pursuit of national security must comply with the law, utmost respect for the rule of law, democracy, human rights and freedoms. In a nutshell, national security is subject to the authority of the constitution and parliament. The envisaged institution is a threat to these fundamental provisions rather than a guarantor of the same.

Whereas the functions as provided in the proposed law in many respects tally with the provision of the constitution in respect to the NSI Service, there are a number of clauses especially those relating to the limitation of rights, oversight, operational transparency and accountability that are wanting. While we appreciate the need to strike a balance between the rights of people working   for the Agency as provided in the Constitution and the need to safeguard the sensitivity and confidentiality of information they will come across in the course of their work. The provisions on limitations of rights do not meet the Constitutional threshold in accordance to Art 24 in terms of their specificity.

There also are a number of reasons why this is a dangerous piece of legislation and seeks to negate the provisions of the Constitution and thus must be rejected: first it has been drafted with the singular aim of perpetuating the institution as it exists today. It does not present much progression in tandem with the New Constitution. There are limited oversight provisions regarding the recruitment of the Director General. This in a way explains why the president re-appointed the current Director General without following the spirit and letter of the constitution pertaining to such appointments. In many respects the procedures for the appointment of the Director General in the Bill do not meet the constitutional threshold for such recruitment.

As pertains to oversight, even though the constitution is clear that the National Intelligence Service (NIS) is subject to the constitution and parliament as per Art. 238 (2a), the Bill seeks to institute  a procedure where it will "vet" MPs who will sit on  a proposed oversight committee to be known as Parliamentary Intelligence Oversight Committee (PIOC). Even though Article 38 recognizes that this committee shall be constituted in accordance with parliamentary standing orders, this provision is oblivious to the fact that Parliament operates on its own rules and standing orders and is not subject to the direction of any body. But even then the same article states that members of that parliamentary committee shall be subject to vetting (Art. 38 (3) by same institution over which the committee is supposed to exercise oversight! The Bill further seeks to legislate that the NIS and its Director General are not subject to any court, tribunal or commission of inquiry (Article 40 (2). How can an Institution that subsists on tax payers funding be insulated from public accountability and scrutiny? If this were the case, would we have known what information was available long before the madness of December 2007 and January 2008? Would we have known the various acts of omission and commission the NSIS and other Agencies engaged in and how useful the intelligence in their possession and further actions would have been in avoiding the Post Election Violence?

In regard to information held by the Service, Article 39 provides that the Director General will make decisions on what information and classified documents are to be kept and what is to be destroyed and the procedures thereof shall be made by the Director General. What will stop the Director General from being at the peck and call of certain interests if s/he has unfettered authority and final word on the destruction of documentation? It should be noted that there are established best practices from around the world on the preservation of documentation and their eventual de-classification. There is no mechanism to insulate the Service from the whims of a rogue Director in respect to preservation of the integrity of the institution and it's accumulated institutional resources, memory and documentation. Whatever information the Service will gather constitutes part of our national treasure, heritage and history and should be preserved. What will stop an outgoing Director General from prescribing the destruction of all information gathered in his or her tenure of service?  There are a lot of advances in ICT that can enable the Service to archive most if not all the information and documentation than the s  discretionary  destruction of  information gathered at tax payers expense.

The Bill does not mention at all that officers in this Service will have police powers neither does it provide for the procedures for interaction with the public.  But, there is a curious provision, in Part III Article 20, which prohibits the service from “torture or any other cruel, inhuman or degrading treatment”. Though in the face of it this is a mundane provision, nowhere in the Bill is the service allowed detention or custodial powers. How then can the proposed law purport to prohibit the Service from torture? The mischief in this is the possibility that the service runs what has now come to be referred to "safe houses"-illegal detention centers that are not covered by any law. There is evidence in the public domain regarding the cooperation between Kenya and Foreign Intelligence services. It is also instructive to note that there is evidence that  Americans have been running such facilities around the World that are now a cause of international furore where torture and other inhumane acts took place. Such facilities would not be allowed to operate in US soil hence they had to be established elsewhere. Has the service been complacent in these acts in association with foreign powers? Is there more than we know in the fight against terrorism? If the entire Bill does not mention any custodial facilities-at what point will citizens and others come into contact with the service to the extent of being tortured? Will the agency have police powers? Will it be dealing directly with public on a day today basis and if so what will be the nature of such interactions and under what Law?

But more worrying is the tone and choice of words that the drafters of the Bill have used. Take for example the following two instances: Art 38(4) the committee shall conduct its functions within a ring of secrecy… and Art. 40 (2) gives absolute immunity  to the Director General and his officers from disclosing information in any proceedings in a court, tribunal, commission of inquiry or any other body....All these on your TAXES. So the bigger question is what Agency does this proposed piece of law intend to create?

It is for these reasons and in the interests of living to the spirit and letter of the Constitution, participation, transparency and accountability and of disabusing this institution of its past hangovers of secrecy, torture and acting like a law unto itself that WE must reject this law.

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Atunga Atuti O.J. is the Chief Executive Officer of The East African School of Human Rights (email: eajournal@email.com)