(Suspected Pirates Keep Their Hands Up, Wikipedia) The upswing in terrorist attacks in Africa has caught the attention of governments across the continent. Counterterrorism efforts, as a result, have recently enjoyed unprecedented levels of domestic funding and political support. Though, that has not always been the case. In the five years following September 11, 2001, legislation on the topic was largely externally-driven, notably through the United Nations Counter-Terrorism Committee and donor governments. In that time period, 14 African countries enacted anti-money laundering and terrorist financing laws. Recently, however, a second wave of legislation has been pushed through by African governments looking to bolster their abilities to tackle threats before they materialize. Since 2014, Tunisia, Egypt, Morocco, Angola, Cameroon, and Kenya have all passed new laws or revisions to existing ones in order to bolster counterterrorism efforts.

This is not to say that all African governments are getting on board; African counterterrorism legislation and the political will behind it varies widely. African countries can roughly be grouped into four categories on this matter. The first includes those that have not introduced domestic counterterrorism legislation, but have signed on to regional or international conventions. Countries in this category include Cape Verde, Gabon, Guinea, Madagascar, Republic of Congo, Sao Tome and Principe, Sierra Leone, Zambia, and Equatorial Guinea. The second group is comprised of those that have added token mentions of terrorism into existing legislation or assert that their existing penal code can be interpreted to include terrorism. Burundi, Botswana, Togo, and Lesotho are members of this group. The third category consists of those that have not only created legislation specifically dealing with terrorism and terrorist financing, but also that have made efforts to follow international guidelines for moderating these laws. These countries include South Africa and Seychelles. Lastly, there are the states that, in the past two years, have been aggressively expanding their counterterrorism legislation.[i]

Domestic legislation is not the sole determinant of whether states have the capacity to arrest and prosecute terrorists, nor is it necessarily reflective of a state’s ability to deter terrorist activities. Other factors, including the effective implementation of these laws, the state and strength of the judicial system, and whether or not states approach counterterrorism in a manner that addresses its root causes, are equally important.

Nevertheless, this surge of interest among African governments to enact and expand their counterterrorism laws suggests that this will be an area of increased activity in the years to come. The recently passed Kenyan Security Laws (Amendment) Act offers a cautionary example of how such laws may necessitate stronger political and structural counterbalances.

Whereas Kenya was one of the countries that had previously strongly resisted pressure to enact counterterrorism legislation in the post-9/11 period, in 2014 it was the Kenyan government, at least the executive branch and its allies within the legislature, that introduced and fought for the passage of the Security Laws. The main political opposition party and numerous civil groups strongly objected to the provisions of the bill, as well as the manner in which it was passed, which they alleged violated parliamentary rules and constitutional requirements.

These objections were partially upheld by the High Court in a ruling that found eight provisions of the Act unconstitutional. Even with some of the most controversial provisions struck out, the law expands the power of the president, the cabinet secretary, and the director general of the National Intelligence Service, which human rights activists and political commentators claim takes Kenya back to the Moi era.

One of the most controversial sections that was removed from the bill threatened journalists with up to three years in prison for sharing information that interfered with investigations relating to terrorism or caused fear. This clause was struck out for being vague and violating the freedom of expression. Other provisions that received major criticism and were ultimately struck out of the bill limited the number of refugees in Kenya to less than a third of those currently in the country, took away a suspect’s right to remain silent by portraying silence as evidence of guilt, levied terrorism charges on anyone possessing a telescope, and attempted to replace the National Police Service Commission with a new institution that would be more directly answerable to the president. The court also struck out a measure that would have allowed a presidential appointee to override a court’s release of a suspect on bail.

The court took a strong stance by removing these sections, but it still allowed many sweeping changes to go through. The National Intelligence Service (NIS) is now allowed to authorize covert operations to “carry out any of its functions,” which can include entering any place, obtaining anything or any information, and search, take, return, and install anything. This was not the only provision containing broad definitions. The court allowed up to 14 years in prison for saying anything “that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism,” whether or not that person actually does so. Another section allows any NIS officer to “detain any person whom the officer... suspects of engaging in any act or thing or being in possession of anything which poses a threat to national security,” thus allowing a wide berth for interpretation.

Other provisions left in the bill reduce legislative oversight over the NIS, allow the organization to demand any information from any government entity, allow suspects to be detained for up to 90 days, and allow individuals to be arrested more than once for the same crime without any new evidence and without a warrant.

Two additional sections have become especially relevant in recent weeks following the release of a list of organizations and individuals accused of terrorism. Previously, any entity declared a terrorist or terrorist group was guaranteed a chance to prove that they shouldn’t be classified as such. Now, that right is only guaranteed “as far as is practicable.” The Cabinet Secretary can also designate any country a “terrorist training country,” and accuse anyone without proof of passing through an official border checkpoint of having traveled to that country and participated in terrorist training. An estimated 1,300 people per day cross the Kenya-Somalia border, few of whom use the nine official border crossing points on the otherwise unmarked border, due to distance or fear of harassment or being turned away.

The same UN Committee that drove the first wave of proliferation of counterterrorism legislation now recommends that African states should “strengthen judicial oversight programs ... [and ensure] compliance with international human rights obligations in the context of counter-terrorism.” As seen in the Kenyan case, counterterrorism laws that focus on expanding government prosecutorial powers can be more problematic than helpful. Before this second wave of counterterrorism legislation gains momentum, a third wave of legislation focused on civil liberties and human rights protections from counterterrorism responses would achieve more progress towards peace and stability in the region, at least in countries that do not already have these liberties enshrined in their constitutions. In Kenya’s case, as in many others with expansive constitutional protections in this area, the independence and strength of the judiciary, combined with a determination by government leadership to balance citizen security with civil freedoms, is the real determinant of progress in this realm.

 

[i] Counts are compiled from the “National Legislation” sections of the Rule of Law in Armed Conflict Project of the Geneva Academy of International Humanitarian Law and Human Rights, as well as the Library of Congress’s Global Legal Monitor, as well as the U.S. Department of State Country Reports on Terrorism.