Offering our worst enemies our best protection! Extending the right to a fair trial to terrorism suspects in Kenya
Jamil Ddamulira Mujuzi
Abstract
Kenya has had more terrorists’ attacks than any country in East Africa. Understandably,various strategies have been adopted to prevent more of such attacks and also to deal with the aftermath of such attacks. The government unsuccessfully attempted to enact a legislation that would specifically deal with terrorism – the Suppression of Terrorism Bill, the Bill. There is an avalanche of literature especially from civil society on the implications the Bill would have hadon the right to a fair trial of terrorism suspects had it been enacted into law. The failed enactment of the Bill into law means that terrorism suspects enjoy the same rights as other crime suspects under the Constitution of Kenya. The High Court of Kenya held that ‘terrorism is a heinous crime.’ This means that the rights of terrorism suspects are more at the risk of being abused than those of ‘normal’ suspects. This article discusses the interpretation Kenyan courts have given to the right to fair trial and argues that such interpretation is as applicable to terrorism suspects as it does to non-terrorism suspects.
1. Introduction
Since 1998 Kenya has had two major terrorist attacks: On 7 August 1998, the United States embassy in Nairobi, the capital, was bombed and as a result 213 people were killed and 4,600 were wounded. On 28 November 2001, two suicide bombers bombed a hotel in Mombasa and as a result 15 people were killed and 80 were wounded. On the same day, terrorist unsuccessfully attempted to hit an Israel airliner that had just taken off from Mombasa’s MoiInternationalAirport. The airliner was carrying over 200 passengers. On 1 August 2003, a young man whom the police had approached to question on suspicion that he was in possession of explosives detonated a hand-grenade just outside Mombasa’s main police station leading to the loss of three lives: the young man’s life, the police officer’s life and the by-passer’s life. Immediately after the hand-grenade incident, police seized firearms in a flat in one of the Estates in Mombasa.[1] These incidents meant that the government had to adopt measures to bring terrorist activities to an end. The Suppression of Terrorism Bill was drafted but shortly shelved because it was criticised widely by local and international non-governmental organisations for its provisions that would have sanctioned numerous human rights violations.[2]One of the rights that the Suppression of Terrorism Bill targeted was the right to a fair trial. Failure by the government to enact the Suppression of Terrorism Bill into law meant that terrorism suspects are governed by the same right to fair trial standards stipulated under the Kenyan Constitution as interpreted by Kenyan courts. This paper analyses the meaning of the right to fair trial in Kenyaand illustrates how and why they should be applied to terrorism suspects.
2. Terrorism: seriousness and definition
The judiciary in Kenya is aware of the seriousness of terrorism but it takes the view that human rights protection, and in particular protecting the rights of terrorism suspects, is essential in the fight against terrorism. Thus, in Mohammed v Republic, the High Court of Kenya observed that:
Terrorism is a heinous crime committed against any country and its peoples. It is for this that those given the authority to prevent or detect terrorist activities operate within the law so that terrorists do not go unpunished on grounds of flawed investigations and breaches of any Constitutional provisions.[3]
Whereas there is international consensus that terrorism is a heinous crime, we still lack a universally agreed definition of terrorism. The Special Rapportuer on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (SRT), Martin Scheinin, observed that ‘[t]he lack of a universal, comprehensive and precise definition [of terrorism] partly explains why States have adopted varying legislation...’[4]This is the case even though terrorism has been known to humankind for centuries[5] and we use the word terrorism almost on a daily basis.[6]Martinez recognises that there is limited consensus at the international level on the broad meaning of terrorism and prophesises that ‘... it is unlikely that the international community will agree in the near future on a specific definition of this contentious term.’[7]This could be attributed to various reasons. Morais is of the view that ‘[p]art of the reason for the continuing disagreement over the meaning of “terrorism” and "terrorist" is that these terms are multifaceted and carry legal, political and even religious overtones.’[8]Tiefenbrun has suggested that ‘[t]he main problem in defining the term “terrorism” is...the paradox inherent in the meaning of the word. [According to] President Ronald Regan... “one man’s terrorism [sic] is another man’s freedom fighter” ... [and according to] Cherif Bassiouni: “what is terrorism to some is heroism to others”.’[9] There are 12 universal conventions on various aspects of terrorism. There are also various regional instruments on terrorism in various parts of the world.[10] This in this article I will not attempt to define terrorism.Some scholars have suggested that although there is a lack of a universal definition of terrorism, ‘there is a core meaning of terrorism that should be accepted as the minimum international definition.’[11] After referring to various scholars and international instruments on terrorism, Young summarises what he thinks are elements which form the ‘core meaning’ of terrorism:
There is striking consistency in the form, themes, and philosophy of the various conventional statements on terrorism. Abstracting from their particular prohibitions (or viewing the prohibitions more broadly than in the narrow context in which they appear and considering their underlying policy goals) illustrates that terrorism as a legal concept at international law has acore content. The serious harming or killing of non-combatant civilians and the damaging of property with a public use causing economic harm done for the purpose of intimidating a group of people or a population or to coerce a government or international organization are proscribed outcomes. The act, which must be independently unlawful, must be intentional, and its consequences must at least be foreseen and desired. No particular motivation need explain the act and none can justify it. Group action or involvement is not a requirement, but the act must be perpetrated by a sub-state actor. The act and/or its effects must be international in character.[12]
The lack of a universally agreed definition of terrorism has meant that at the national level, courts and legislators in some countrieshave different understandingsof terrorism. The SRT has cautioned that ‘[t]his situation may lead to vague definitions and flawed procedures that do not meet the requirements of legality and judicial guarantees set out, particularly in the International Covenant on Civil and Political Rights.’[13] In Canada, for example, the Supreme Court held that ‘...the term “terrorism” in section 19 of the Immigration Act was not vague, saying that the International Convention for the Suppression of the Financing of Terrorism provides guidance to the meaning of terrorism.’[14]In Uganda section 7 of the Anti-Terrorism Act, 2002 specifically defined terrorism.[15]These different definitions could also be attributed to the fact that, ‘we have to realize that there is no intrinsic essence to the concept of terrorism -- it is a man-made construct. Definitions generally tend to reflect the interests of those who do the defining.’[16] The international community started paying sufficient attention to terrorism when planes were flown into the TwinTowers of the World Trade Centre in New York on 11 September 2001.[17] This has had many human rights implications including the violation of the right to a fair trial in some instances. This article looks at the right to fair trial from a Kenyan perspective. For lack of space, the author does not discuss the right to fair trial under international law and the African human rights system though he is aware that such a discussion would have enriched this paper. But where necessary such sources are referred to in the course of the discussion. For one to understand the right to fair trial in the Kenyan context, it is vital to have a brief general overview of the legal status of human rights in Kenya.
3. Human Rights in Kenya: A general overview
Human rights in Kenya are provided for under chapter V of the Constitution which is titled ‘Protection of Fundamental Rights and Freedoms of the Individual.’ Kenya is also state party to various major international and regional human rights treaties like the International Covenant on Civil and Political Rights (ICCPR),[18] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[19] the Convention against Torture (CAT)[20] and the African Charter on Human and Peoples’ Rights (African Charter).[21]The rights provided for under Chapter V are more or less like the rights found in many Bills of Rights of constitutions in other African countries. However, what is probably unique about the Kenyan constitution is the general provision at the beginning of the Bill of Rights which provides that fundamental rights and freedoms are not absolute. They are ‘subject to respect for the rights and freedoms of others and for the public interest.’[22] In a recent defamation case of Martha Karua v Radio Africa Ltd t/a Kiss F.M. Station & 2 others,[23] the Constitutional Court made the following observation with regard to the status of human rights in Kenya:
...the fundamental rights and freedoms in Kenya although dearly cherished are not absolute. They are subject to the right [sic] and freedoms of others. The freedoms and rights of others are equally protected by the Constitution and guaranteed to every person. In addition, the rights and freedoms are subject to the public interest. It is therefore quite evident from ... that as far as the other persons are concerned the fundamental rights and freedoms are on an equal footing and that there is no hierarchy of rights and that all must enjoy the same rights and freedoms... The reason why the fundamental rights and freedoms are subject to the rights of others and the public interest as per the Constitution of Kenya is that they create a mutuality in terms of their enjoyment and responsibility. They are subjected to the public interest because it is absolutely necessary to achieve the common good for all...It is only where a right or freedom has permissible limitations when the court is called upon to consider competing values and interests such as necessity of limitation, reasonableness, whether reasonably justified in a democratic society, [and] proportionality (whether the means justify the end).[24]
As mentioned earlier, this was a defamation case in which the right to freedom of press or expression was in the issue. The Constitution of Kenya, like many other constitutions in Africa,[25] does not treat the right to freedom of expression as an absolute right. This is not surprising because even under the African regional human rights system, the inter-American regional human rights system, the European human rights system and under international law, the right to freedom of expression is not absolute.[26] However, for the Constitutional Court to hold that all fundamental rights and freedoms in Kenya are not absolute, with all respect, is misleading and conflicts with Kenya’s international human rights obligations. This is because some of the rights provided for under the Constitution of Kenya are absoluterights under some of the international treaties that Kenya has ratified. These include the right not be subjected to slavery under Article 73; the right not to be subjected to torture under Article 74; the right not to be deprived of life arbitrarily under Article 71; and the right not to be punished for an act which did not constitute an offence at the time it was committed under Article 77 (4).[27] It should also be mentioned that two of the above rights, that is, the right not to be subjected to slavery and the right to freedom from torture are considered to have the status of jus cogens under international law.[28]
Another question that needs to be answered relates to the status of international law, and in particular of human rights treaties, in the Kenyan context. In the case of Pattni and another v Republic[29]the applicants, who had a string of criminal cases against them which included defrauding the government of billions of shillings, alleged before the High Court, amongst other things, that their right to be tried within a reasonable time had been violated because their cases had taken more than two years without being finalised. They argued that this was a violation of their rights under the Universal Declaration of Human Rights, the ICCPR, and the African Charter. They however did not specify which provisions of those instruments were allegedly violated. The court observed that:
...[the] amicus curiae did...produce a copy of the Universal Declaration of Human Rights 1948; International Covenant on Civil and Political Rights 1966;[and] The African Charter on Human and Peoples’ Rights 1981. Although those international instruments testify to the globalisation of fundamental rights and freedoms of an individual, it is our Constitution as a law which is paramount – Okunda v R [1970] EA 453. That is not to say, however, that Court cannot in appropriate cases, take account of the emerging international consensus of values in this area. The two counsel will take consolation in the fact that Chapter V of the Constitution dealing with protection of fundamental rights and freedoms of the individual entrenches and sanctifies, subject to right to amend, the International Human Rights Law.[30]
Unlike in South Africa,[31] courts in Kenya are not expressly required to consider international law when interpreting the Bill of Rights. Even then, there is at least one fundamental problem with the above ruling – the court’s reliance on a 1970 decision for its conclusion on the status of international human rights treaties in Kenya’s legal jurisprudence. By 1970, when the Okundadecision on which the court relied was made, the African Charter had not been adopted and Kenya was yet to ratify the ICCPR. At the same time, the principle laid down in 1969 Vienna Convention on the Law of Treaties that a state shall not invoke its domestic law to defeat its international obligations had not been firmly established in international law.[32] The African Commission on Human and Peoples’ Rights has held that when states become parties to international treaties, they do so willingly and voluntarily and thus have an obligation to respect the rights and freedoms in such treaties.[33] The Human Rights Committee has also emphasised the importance of states towards implementing their obligations under the ICCPR.[34] For a court to decide in 2001that the Kenyan Constitution is superior to international treaties, this leaves a lot to be desired and such a decision cannot be taken seriously as part of law in Kenya.
However, what is clear is that the Constitution is the Supreme law of the land and any other domestic law which conflicts with it is null and void.[35] This was emphasised by the High Court when it held that:
The Constitution has primacy (only subject to its provisions, such as 84(6) – the rule making provisions) over all other laws, which, so far as are inconsistent with its provisions must yield and give way to its provisions. To read down its provisions so that they accord with other pre-existing rules or principles is to subvert its purpose. In interpreting and applying the Constitution, the protection of guaranteed rights is the primacy objective to which the provisions of ordinary statutes or traditional rules of the common law must yield.[36]
The High Court held that ‘[a] person alleging a breach or contravention of Chapter V rights carries a heavy burden of proof to be discharged by that person or the Applicant.’[37] In other words, that person must precisely state which right has been violated and substantiate his claims with evidence. Thus a person who alleges that their right to a fair trial has been violated should first of all know what the content of that right is in the Kenyan constitution before alleging its violation.
4. Fair Trial Rights under the Constitution
The Constitution provides for the right to fair trial under Article 77. This right has various facets: (1) if a person is charged with a criminal offence, then, unless the charge iswithdrawn the case shall be afforded a fair hearing within a reasonabletime by an independent and impartial court established by law;(2) Every person who is charged with a criminal offence-(a) shall be presumed to be innocent until he is proved or has pleaded guilty;(b) shall be informed as soon as reasonably practicable, in a language that heunderstands and in detail, of the nature of the offence withwhich he is charged;(c) shall be given adequate time and facilities for the preparation of hisdefence;(d) shall be permitted to defend himself before the court in person or by alegal representative of his own choice;(e) shall be afforded facilities to examine in person or by his legalrepresentative the witnesses called by the prosecution before the courtand to obtain the attendance and carry out the examination of witnesses totestify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and(f) shall be permitted to have without payment the assistance of aninterpreter if he cannot understand the language used at the trial of thecharge, and except with his own consent the trial shall not take place inhis absence unless he so conducts himself as to render the continuance ofthe proceedings in his presence impracticable and the court his orderedhim to be removed and the trial to proceed in his absence.