Summary of the Anti- Terror Laws: Hidden Power Grab

[Omollo]

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I will serialize the proposed amendments and show how they are not about fighting terror but preparing the ground for mass slaughter of people for political reasons. I will not post all of it at once because I know how that causes ennui:

Now how do you deal with the next saba saba or if you rig elections and people go to the streets and the CS for internal security "bans" the demo???

(1A) Any person who unlawfully convenes, organizes or promotes a public rally, meeting or procession or
neglects or refuses to comply with any law relating to public meetings commits an offence.

[Omollo]

When we thought PCs were a thing of the past and that no power shall be wielded by unelected officials, Uhuru resurrects that power and hands it to his ministers. Instead of transferring that power to governors who are lected , he gives it to ministers. What is better than to have the IG ask a governor to declare a curfew in a given a place? Uhuru does not trust elected officials:

Commissioner of Police or Provincial Commissioner"Cabinet Secretary, on the advice of the Inspector-General of the National Police Service

The current law reads:

Curfew orders
(1)   
The Commissioner of Police or a Provincial Commissioner may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area (being, in the case of a Provincial Commissioner, within his province) and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorised by or under the curfew order.

[Omollo]

This targets bloggers like Omollo who publish photos of EJK victims that GoK does not wish to see circulated. It may also include photos of 43 KDF soldiers killed by Al Shabaab:

15. The Penal Code is amended by inserting the following new section immediately after section 66?
Publication of obscene, gory or offensive material.
66A. A person who publishes or causes to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace is guilty of a felony and is liable, upon conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding three years or both, or, where the offence is committed by a media enterprise, to a fine not exceeding five million shillings.

[Omollo]

Some portions are NOT so bad, lets give The Devil his due before we burn him:

16. The Penal Code is amended by inserting the following new section immediately after section 128?
Offences by public officers.

128A. A public officer who in the cause of his or her employment?
(a) aids or facilitates the commission of a felony;
(b) facilitates the entry of a criminal into Kenya; or
(c) conceals the whereabouts of a criminal is guilty of a felony and is liable, on conviction, to imprisonment for a term of not less than ten years.

[Omollo]

Na hii ya Mungiki sio mbaya hata kidogo:

[RV Pundit]

The creeping return of KANU. That is how to explain all the ammendments being sneaked in. Let hope judiciary will return those laws back to parliament.

[Georgesoros]

This is the time to be vigilant. Moi muzzled parliament to pass laws that favored his dentention of any critic. We are watching Uhuru do the same in the name of tfighting terror. This is the time to shout at the top of your voices. Return of the police state.

[Omollo]

Uhuru wants to tell the High court and Court of Appeal judges how to do their jobs. Good luck with that... The DPP should make his case in court and apply for a stay. If he convinces the judge so be it. The Judges should continue to have their prerogative to order immediate release of detainees. Uhuru does not think so.

379A. In a case where the High Court, in exercise of its original jurisdiction, has granted bail or bond to an accused person, the Director of Public Prosecution, may, as of right, appeal against that decision to the court of appeal:
Provided that if the Director of Public Prosecutions has indicated an intention to appeal the order, the order shall be stayed for a perod of fourteen days pending the filing of an appeal.

[Omollo]

If you think this applies to Okemo and Barasa think again. This will legalize rendition. Now all a foreign power has to do is issue a warrant of arrest. Museveni could be persuaded to issue such a warrant against Raila. In the past this is what would happen:

7.   Hearing of case and evidence
(1)When a fugitive criminal is brought before a magistrate, the magistrate shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, as in a trial before a subordinate court.
(2)The magistrate shall receive any evidence which may be tendered to show that the case is one to which the relevant provisions of section 16 apply or that the crime of which the prisoner is accused is not an extradition crime.

Uhuru Kenyatta proposes this:

(3) Where the court is satisfied about the authenticity of the warrants and that the warrant was issued by a proper authority of the foreign country, the court shall proceed to issue a warrant of surrender without holding the proceedings as specified under section 7 of the Act.

[Omollo]

Guess the implications of this:

29. Section 8 of the Registration of Persons Act(1A) The Director may establish identification committees or appoint persons as identification agents to assist in the authentication of information furnished by a parent or guardian.

Currently this is what is required. This section simply means you cough out money to "authenticate" documents:

8. Power to demand proof of information
A registration officer may require any person who has given any information in pursuance of this Act or rules made thereunder to furnish such documentary or other evidence of the truth of that information as it is within the power of that person to furnish.

[Omollo]

The ID can be revoked at the least excuse. This can spell doom for some voters. I have no problem with that except there should be a sunset clause to these powers. I think three years after issuance should be enough. Just like many offences cannot be tried after a period, the authorities should discover the mistake withing three years after that the person would have earned his ID anyway.

In any case what is an ID? If a person is a citizen then he is entitled to an ID and Passport. If he is not then he has no rioght to this. This section is both obsolete and in the wrong place:

[RV Pundit]

Laws drafted by a moron. Thanks Omollo for serliazing it. For a gov that engages in EJK..why do they need laws.Just pull out suspects and deal with them....and leave our freedoms and liberties intact.

[Omollo]

The important thing to note is is 90 (ninety Days). By hook and crook, Uhuru wants to be able to detain people for 90 days without charging them. You can now be held in custody ostensibly "assisting police with their inquiries" for three months.

We know that this is what Kenyatta and Moi used to do. Three months and then you are released by the court only to be re-arrested outside and presented in a new court on what used to be shamelessly called "holding charges" where the police openly admit the charges upon which they are violating your freedom are frivolous and not to be pursued to the end. Among those who suffered under these charges include Raila Odinga, Koigi Wa Wamwere, George Anyona, Mukaru Ng'ang'a, The current Chief Justice, Maina Kinyatti... the list is endless. It is baaaack!

The Bill of rights is very clear on the time between arrest and production in court. There is no way any law can limit that. In fact the very idea of limiting rights is forbidden by the constitution. So this is an attempt to invite magistrates to disobey the constitution and then hope the matter will end up in the Supreme Court where Njoki Ndung'u will re-write what her colleagues rejected:

if a police officer has reasonable grounds to believe that the detention of a person arrested beyond the twenty-four hour period is necessary, (10) Where the court grants an extension under subsection (10), such period shall not, together with the period for which the suspect was first remanded in custody, exceed ninety days.

[Omollo]

This is what I call Giving with one hand and taking with both. It purports to provide for evidence disclosure until you read a little further and see all the qualifications and exceptions.

The defence is BTW now required to disclose all the evidence to be relied upon with no exceptions. The deck is stacked against mwananchi!
 

Disclosure by prosecution.
42A. (1) Pursuant to Article 50(2)(j) of the Constitution, the prosecution shall inform the accused person in advance of the evidence that the prosecution intends to rely on and ensure that the accused person has reasonable access to that evidence.

[Omollo]

Notice that no exceptions are granted the accused. What of danger to the witnesses? What of family? Would not a person not in custody be alerted that he is a suspect? Would not informants be identified too? Are Defence witnesses immune to intimidation and other perils that are known to afflict Prosecution witnesses? What if the evidence by the defence has public interests? Or Security implications?  Where is equality before the court of defence and prosecution?

160A. An accused person who has been called upon to enter his defence, shall disclose
to the prosecution the nature of his defence including witness statements and documentary evidence.

[Kim Jong-Un's Pajama Pants]

The law is not the problem when it comes to insecurity in Kenya.  It's not even part of the problem.

In no specific order.  The top three problems.

1. Corruption.
2. Corruption.
3. Corruption.

You can make all the draconian laws on the planet.  Yet the askaris charged with enforcing them will not starting eating grass just because there are new laws.

[Omollo]

No Comment

Police Supervision
343.(1) When a person, having been convicted of an offence punishable with imprisonment for a term of three years or more is again convicted of an offence punishable with imprisonment for a similar term or of an offence under section 345, the court may, at the time of passing sentence of imprisonment on that person, also order that he shall be subject to police supervision as provided by section 344 for a period not exceeding five years from the date of his release from prison.
(2) If the conviction is set aside on appeal or otherwise, the order shall become void.
(3) An order under this section may be made by the High Court when exercising its powers of revision.
Requirements from persons subject to police supervision.
344. (1) A court may at any time direct that a person shall, whilst subject to police supervision under section 343 and at large in Kenya, comply with all or any of the following requirements, and may vary any such directions at any time?
(a) to reside within the limits of a specified area;
(b) not to transfer his residence to another area without the written consent of the police officer in charge of that area;
(c) not to leave the area in which he resides without the written consent of the police officer in charge of that
area;
(d) at all times to keep the police officer in charge of the area in which he resides notified of the house or place in which he resides and provide his telephone and other contacts;
(e) to present himself, whenever called upon by the police officer in charge of the area in which he resides, at any place in that area specified by that officer.
(2) The Cabinet Secretary may make rules for carrying out the provisions of this section, and in particular prescribing the manner in which persons may be brought before a court for the purposes of this section.

[Omollo]

It should be possible for people under police supervision to move from one police jurisdiction to another. This is to protect their ability to earn a living and guard against economic hardships leading to anti-social behavior and crime. This should also be subject to judicial review.

I also find it strange that it shall be same period for all regardless of the magnitude of the offence. This is another example of Uhuru trying to prescribe de minimis

Automatic Police Supervision
344A. (1) A person who is convicted of an offence under section 296(1), 297(1), 308 or 322 of the Penal Code the Prevention of Terrorism Act or the Sexual Offences Act shall be subject to police supervision for a period of five years from the date of his release from prison.
(2) A person who is subject to police supervision under this section shall, whilst he is so subject?
(a) reside within the limits of such area as the Commissioner of Prisons shall, in each case, specify in writing;
(b) not transfer his residence to another area without the written consent of the police officer in charge of the specified area;
(c) not leave the area in which he resides without the written consent of the police officer in charge of that area;
(d) at all times keep the police officer in charge of the area in which he resides notified of the house or place in which he resides;
(e) present himself, whenever called upon by the police officer in charge of the area in which he resides, at any place in that area specified by that officer.

Failure to comply with requirements under section 344.
345.(1) If a person subject to police supervision who is at large in Kenya fails to comply with a requirement placed upon him by or by virtue of section 344 or 344A, he shall, unless he proves to the satisfaction of the court before which he is tried that he did his best to act in conformity with the law, be guilty of an offence and liable to imprisonment for a term not exceeding six months and on a second or subsequent conviction for that offence to imprisonment for a term not exceeding twelve months.
(2) A police officer may arrest without warrant a person whom he suspects upon reasonable grounds of having committed an offence under this
section.

[Omollo]

One of the well known dirty tactics of the police all over the world is to cut corners with warrants. They achieve this by adding new addresses to those already provided to the judge at the time of issuance, backdating and post dating; altering names and titles; Extending provided limitations etc. Decent countries therefore are strict and provide for nullification in event of any mistakes as this is about The Bill of Rights.

Uhuru now allows the police to make as many "mistakes" as possible and still have their warrants and the evidence thereof admissible. That effectively allows the police to "legalize" illegal activities post facto - with the help of the courts!

346. The court may at any time amend a defect in substance or in form in an order or warrant, and no omission or error as to the time and place, and no defect in form in an order or warrant given under this Code, shall be held to render void or unlawful an act done or intended to be done by virtue of that order or warrant, provided that it is therein mentioned, or may be inferred there from, that it is founded on a conviction or judgment, and there is a valid conviction or judgment to sustain
it.

[Omollo]

God help those who get acquitted of crimes by the courts because they shall not become free!
1. Go bye to a new trial. Remember Kenyan courts do not admit new evidence in appeals.

348A. (1) When an accused person has been acquitted on a trial held by a subordinate court or High Court,
or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a
subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of
Appeal as the case may be, from the acquittal or order on a matter of fact and law.
(2) If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.