Security laws (Amendment) Bill 2014

We, the members of The Devolution Forum, are deeply concerned with the provisions of the Security Laws (Amendment) Bill 2014.

We acknowledge that there have been serious internal and external threats to the security of this country, and by extension that of Kenyans. We note the fact that the country has spent the last 25 years trying to reform policing systems and national security, with numerous commissions and Task Forces engaged in processes that have cost the tax payers over 10 Billion shillings. While the reports of the commissions and task forces set out recommendations to inform the reform of the security sector, we deeply regret that these have never neither been implemented nor inform the current rushed push for amendment of the security laws.

His Excellency the President, during the State of the Nation address to Parliament in March 2014, promised major security sector reforms as a priority in efforts to strengthen the rule of law and effectively combat crime in the country. Having assessed the proposed amendments proposed changes to the security laws we are strongly persuaded that they are cosmetic, episodic and too myopic to match the President’s promise for comprehensive security sector reforms. We also deeply regret that the proposed changes are incompatible and inconsistent with Article 238 of the Kenya Constitution 2010 on the principles of the National Security.

Through the constitutional review process, there was unanimity on the principles to underpin Kenya’s security sector and these are clearly articulated in Article 238 of the Constitution. They include, inter alia:
1. National security is subject to the authority of the Constitution and Parliament;
2. National security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;
3. In performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya; and
4. Recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions.

There are further guidance on the architecture and operations of the national security organs in Article 239 whose gist is to further guarantee the independence and accountability of the national security organs. It clearly stipulates that the national security organs shall be non-partisan, apolitical and subordinate to civilian authority.

We wish to reiterate that whatever laws and policies enacted/formulated to reform the security sector must religiously adhere to, and be compatible with these values and the values and principles of governance as postulated in Article 10 of the Constitution.

After reviewing the proposed bill, we note the following:

1. The proposed Security Laws (Amendment) Bill 2014 offends the constitution of Kenya 2010 by undermining the sovereignty of the people, the supremacy of the Constitution, Bill of Rights and promoting persecution of the religious matters in respect to the Northern Frontier Districts
2. There are sufficient policy frameworks in existence and others in development to deal with insecurity issue other than the proposed laws.
3. There are laws that were proposed in security sector reforms which were not implemented. Had these proposals been put into considerations, the security crisis would have been averted.
4. The proposed law is a prospect to undermine the chain of command as stipulated in the constitution. If the bill is amended, there will be a constitutional and legal chain of command on one hand; and parallel illegal chains of command for civilians.
5. There will be abuse of law by rogue elements if the proposed bill is made into law.

Having noted the above; we, members of The Devolution Forum want the following:

1. A comprehensive National Security Council Bill that gives guidance on crime protection laws and policy.
2. Restructuring and a complete overhaul of the National Police Service due to the failed security organs.
3. The government needs to put mechanisms in place to deal with the corruption in the security sector
4. Engaging the County governments’ on security by articulating the County National Police Service leadership, Command and Security Spokesperson structure under Police Officer in Charge of the County appointed by merit competitively by National Police Service Commission. The Officer will chair the County Policing and Law Enforcement Technical Committee.

Contact person:
Asentah Mwithigah [email][email protected]>
The Devolution Forum Co-odinator