Containing Unruly Flight Passengers

"The triggering factors are many and varied but intoxication through alcohol, narcotics or medication, often starting before a passenger boards the aircraft are the most common."

An unruly or disruptive passenger is one who fails to respect rules of conduct at an airport or on board an aircraft or (fails) to follow instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board the aircraft, according to Annex 17 to the International Civil Aviation Convention 1944. An aircraft is considered to be in flight from the moment power is applied for the purpose of take-off until when the landing run ends.

Tokyo Convention

The Convention on Offences and Certain Acts committed on Board Aircraft (Tokyo Convention, 1963) governs the offences and other unlawful acts that occur on board an aircraft in flight, including unruly and disruptive behaviour by passengers.

Approximately 185 countries (known as contracting States) out of the 191 United Nations (UN) countries have ratified this convention making it one of the conventions with the highest number of ratifications. Kenya ratified the convention on 22nd June 1970 and it became effective on 20th September 1970. The convention applies only to civilian aircraft and criminalizes acts which, whether or not are offences, may jeopardize the safety of the aircraft or persons or property aboard it or which jeopardize good order and discipline on board while that aircraft is in flight.

The aircraft’s State of Registration is mandated to exercise jurisdiction over offences and acts committed on board and each contracting State is required to take such measures as may be necessary to establish its jurisdiction as the State of registry over offences committed on board aircraft registered in such State. The convention does not however, exclude any criminal jurisdiction exercised in accordance with national law. Unruly Passengers Since the entry into force of Tokyo Convention 1963 on 4th December 1969, the number and type of unruly and disruptive passenger events on commercial flights has increased steadily.

According to the International Air Transport Association (IATA) statistics, in 2010, there was one unruly passenger incident for every 1,359 flights while in 2011, there was one unruly passenger incident for every 1,200 flights.

Aviation Law

The triggering factors are many and varied but intoxication through alcohol, narcotics or medication, often starting before a passenger boards the aircraft are the most common.Other causes include irritation with other passengers’ actions on board, frustration linked to a passenger’s journey, mental breakdowns or episodes (such as acute anxiety, panic disorder or phobias), mental conditions (psychosis, dementia or bi-polar disorder), and environmental factors that surround flying,(such as gathering of large crowds at airports, sitting and travelling in a confined space, fear of flying and fear of possible unlawful interference events.

Huge Losses

Cases of disruptive passengersnot only result in inconveniences to the flight and passengers but also cause huge losses in terms of costs to airlines which may run into millions of shillings. The costs include the cost of diversion. In extreme cases and where the safety of a flight is at risk, the pilot-in-command would divert a flight mid-journey to disembark an unruly passenger.

Consequently, the affected airline would suffer losses due to cost of refueling as the aircraft may be required to dump fuel for unexpected early landing for the onward journey, additional landing fees and ground handling charges at the port of disembarkation. In some cases, accommodation costs and passenger compensation may be incurred due to delays.

Additionally, new members of crew may be required in case of time out. The resultant delays may also cause missed schedules, inconveniences and have a negative impact on the airline brand and reputation.

Restraint aboard

The pilot-in-command of an aircraft is empowered under Article 6 of the Tokyo Convention 1963, when he/she has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act, to impose upon him/her reasonable measures including restraints. This is in order to protect the safety of the aircraft or of persons or property on board and further, ensure good order and discipline is maintained on board an aircraft and the Pilot- in-Command deliver such person to competent authorities or to disembark him/her in accordance with the provisions of the convention.

Airlines use different methods to restrain unruly passengers including the use of flex-cuffs (a type of plastic strap that functions as a handcuffs and easier to carry than metal handcuffs), seatbelts,adhesive tape, shoe laces, neck ties or whatever is available to immobilize unruly passengers on the seats. In Australia, the use of stun guns (an electroshock weapons that momentarily disables a person with an electric shock) is permitted. The convention grants immunity to the aircraft commander, members of the crew, any passenger, owner or operator of the aircraft, person on whose behalf the flight was performed against any liability on account of the treatment meted on the person against whom the actions were taken in accordance with the convention.

Legal Frameworks

The Tokyo Convention 1963 does not clarify what constitutes an offence and neither is there a documented list of what constitutes an offence. The International CivilAviation Organization (ICAO) has provided some guidance material but different States have different definitions of what acts amount to an offence. Therefore, there is no clarity in the legal framework to help define incidents of unruly passengers. However, one can generally state that it depends on the individual circumstance and the main consideration is if the behavior jeopardizes the safety of an aircraft in-flight then it is an offence under this Convention.

Common offences include illegal consumption of narcotics or cigarettes, refusal to comply with safety instructions, verbal confrontation with crew members or other passengers, physical confrontation with crew members or other passengers, uncooperative passengers, making threats that could affect the safety of crew, passengers and aircraft, sexual abuse or harassment.

Hot Water

Some reported cases of unruly behaviour include an Air Asia flight from Bangkok, Thailand to Nanjing, China in December 2014 which was forced to turn around after an irate passenger deliberately threw boiling water on a flight attendant. According to the airline, a Chinese couple who were travelling with a tour group became furious when they were seated apart. Instead of calming down when flight attendants were able to seat them together, the woman ordered instant noodles and boiling water and then proceeded to chuck the scalding water on a flight attendant after a dispute over payment.

Ebola Scare

In October 2014, a coughing and sneezing passenger flying from Philadelphia, USA to the Dominican Republic shouted “I’ve been to Africa and I have Ebola!” Consequently, the aircraft was held on the tarmac for more than an hour after landing, while emergency workers in hazmat suits removed the passenger from the aircraft. The passenger pleaded that he had only been joking but the airport had to take precautions. On 9th March 2014, a groom flying from Atlanta USA to Costa Rica forced Delta Air Lines flight to divert to the Cayman Islands after he got into an argument with his new wife en route to their honeymoon. Theplane then proceeded to USA

with the wife on board leaving him

in the custody of the Cayman Islands’

authorities.

Kisumu Passenger

In Kenya, on 17th November 2014 a passenger was charged before a Kisumu Court, accused of causing a one-hour delay for 27 other passengers by smoking an electronic cigarette on KQ aircraft flight 874. According to the charge sheet, the passenger refused to follow instructions by flight authorities to stop smoking.

Legal Loopholes

The biggest challenges with the existing legal framework dealing with offences committed on board an aircraft under Article 3 of the Tokyo Convention is the limited jurisdiction. The convention only recognizes the State of registry as competent to exercise jurisdiction.

This may have been true as at 1963 when the convention was negotiated but developments in the aviation sector has necessitated a review. In March/April 2014, ICAO convened a diplomatic conference in Montreal, Canada at which the contracting States came up with a protocol that among other issues addresses jurisdiction. Although the Montreal protocol, 2014 is not yet in force, it has extended jurisdiction to the State of landing (when the aircraft on board which the offence or act is committed lands in its territory with the alleged offender still on board) and to the State of the operator(when the offence or act is committed on board an aircraft leased without crew to a lessee whose principal place of business or, if the lessee has no such place of business, whose permanent residence is in that State.

Further, the current legal framework does not provide an enumeration of offences and penalties. This may pose a challenge in some jurisdictions if their Constitutions provide that a criminal offence must be clearly stated and attendant penalty stipulated. The ICAO has provided circular number 288 to provide guidance on what constitutes an offence but that remains just guidance material and not a penal code.

Mr. Wayong’o is a Legal Officer at the Kenya Civil Aviation Authority (KCAA)

New Feminism This Century

"Evidently, radical feminism fails to identify matriarchal oppression. For example women are actively
involved in sexual exploitation of other women through trafficking, prostitution and even pornography." Vollah Owino

In Bradwell v Illinois 83 US 130 (1873) Justice Bradley, delivered a poignant dictum that was

somehow conflated with misogynistic overtones. He rhapsodically stated: “It is true that many women are unmarried and not affected by any of the duties, complications and incapacities arising out of the married states, but these are exceptions to the general rule. The paramount destiny and mission of a woman is to fulfill the noble and

benign offices of wife and mother.

This is the law of the creator. And the rules of civil society must be adapted to the general constitution of things and cannot be based upon exceptional cases.” This benighted opinion signified

the institutional marginalisation of women in society. Indeed, the orthodoxy of cultural norms, Abrahamic religion and even science viewed femininity with contempt. Nonetheless, these obstacles were annihilated due to the feminist movements of the nineteenth century that gave women panoply of rights.

Wage Gap

However, it is apparent Radical- Marxism feminism evolved into subtle misandry due to the strong

resentment towards masculinity. First, radical feminism doctors statistics on gender discrimination to

win public sympathy. For example ‘wage gap’ argument that women earn less than men

within the same job description.

Nonetheless, renowned economist and Stanford Fellow Professor Thomas Sowell unmasked

this myth in his book Affirmative Action around the World. Sowell argues there are inherent factors

such as overtime and side jobs that dynamically alter the amount of income. Equally, the only difference in income encircles women who are mothers since they pursue careers that are coherent with the demands and dynamics of motherhood. However, the net income disparity between single women and men is naught if not marginal.

Marital Failure

Contiguously, is statistics on mortality. Statistics indicate the leading cause of death among middle aged men is suicide. This calamity stems from a myriad of issues such as marital failure, midlife crisis, job pressure and harsh economic times. Surprisingly, this information never reaches by the mainstream media which is infiltrated with feministic and gynocentric objectives.

Fourthly, is the impulsive war on the boy child. Acquiescently, there are numerous organisations and mechanisms that champion for the rights of the girl child compared to boys leaving them vulnerable and segregated. Along the same vein, is effimanisation of school syllabus and routine. Professor Christina Hoff Summers in The War on Boys contemporary school routine ridicules boys as ‘deformed girls’.

Therefore, boys are forced to recant their masculinity and embrace to feminine standards and

attributes. This squaring of the circle mission has contributed to poor academic performance and

the mounting rate of boys dropping out of school due to loss of interest. Evidently, radical feminism fails to identify matriarchal oppression.

For example women are actively involved in sexual exploitation of other women through trafficking, prostitution and even pornography. These examples signify that men are not the sole cause for women’s problems.

Cumulatively, democratic and constitutional state recognises the essence of gender equality. Nonetheless, this egalitarian objective should be approached from a complimentary rather than confrontational perspective. Consequently, is feminism ripe for counterreformation?

Kenya’s Security In The New Constitutional Dispensation

“The signing of the Kenya National Dialogue and Reconciliation Accord following the calamitous post-election violence set the country on a much desired path of constitutional, institutional and legal reform..” Chrisphine Owiye

The Government is a legal institution envisioned by the Constitution as the universal provider of security and solace to the citizenry. With a highly extensive structure, it is hoped that the Government houses the requisite infrastructure, facilities and professional wealth to not only secure the borders of the country but also offer intra-country comfort to citizens.

Defence Forces

It is worth noting that the reforms hitherto witnessed in the arena of security in Kenya did not come easily. The post-election violence in 2007/2008 provided an opportunity to relook the country’s security structure and abilities. Lives were lost and property worth hundreds of millions destroyed. Displacement of humanity in monumental proportions was witnessed all over. The signing of the Kenya National Dialogue and Reconciliation Accord following the calamitous post-election violence set the country on a much desired path of constitutional, institutional and legal reform.

The constitutional review process, which had witnessed several false starts, suddenly got a near all embrace culminating into the enactment and the promulgation of the Constitution in 2010. Instructively, the security sector benefitted remarkably under the new constitutional dispensation.

To begin with, Article 241 of the Constitution established the Kenya Defence Forces (KDF) which encompasses the Kenya Army, the Kenya Airforce and the Kenya Navy. The KDF is constitutionally responsible for the overall defense and protection of the sovereignity and territorial integrity the country.

At the apex is the defence council responsible for the overall policy, control and supervision of the forces. The membership comprises the Cabinet Secretary for the time being responsible for defence who presides as Chairperson, the Chief of the KDF, and the Principal Secretary in the Ministry responsible for defence.The KDF Act seeks to statutorily align the defence forces to the spirit and letter of the Constitution. Section 3 of its guiding principles requires the defence forces to respect and uphold the Bill of Rights and the values and principles enshrined in Article 10 of the Constitution.

Intelligence Service

The National Intelligence Service (NIS) on the other hand previously known as the National Security Intelligence Service morphed from the then dreaded department of National Police Force code name Special Branch and established in 1952 to provide intelligence to the British administration.

After independence in 1963, the special branch was transformed into the directorate of security intelligence and subsequently in 1999; the NIS was born following the enactment of the National Security Intelligence Service Act. The Constitution establishes the NIS captained by the Director General who is appointed by the President with approval of the National Assembly.

According to Article 242 of the Constitution, the chief mandate of the Service is to provide security intelligence and counter intelligence to enhance national NIS has been in the spotlight over giving and sharing of intelligence information on potential terrorist attacks. Probably time is nigh that we relooked the entire establishment, structure and systems of the NIS with a view of firming it up for a more effective and efficient discharge of its mandate

Police Service

The Kenya Police Service (KPS) has also travelled a tumultuous journey. The events following the post-election violence strengthened the push for police reforms. The Commission of Inquiry into Post-Election Violence (the Waki Commission) made a raft of recommendations including the initiation of reforms in the police service operations and creation of an effective system of police accountability.

A subsequent United Nations special rapporteur report did similarly accuse the police of extra judicial executions hence pressed the need for an overhaul and streamlining of the existing policing rank and file.The Government set up a task force headed by Judge Ransley to deal with the same and following its report, the Police Reform Implementation Committee was set up to oversee the implementation of the task force recommendations.

As a consequence, the National Police Service Act was enacted effectively merging the Kenya Police and the Administration Police into one single establishment under the command of the Inspector General of Police. Under the new dispensation, the capacity of the criminal investigations was enhanced in terms of funding and management.

Executive Interference

In a rather progressive bid to offer civilian tab over police action, the National Police Service Commission Act was enacted. The Act establishes a civilian board tasked with the onerous responsibility of overseeing the recruitment and appointment of police officers, reviewing standards and qualifications and receipt of complaints from members of the public. Since its establishment, the National Police Service Commission has faced a myriad of challenges such as lack of quorum in its sittings and threats to the life of the chairperson. The Commission has also encountered interference from the Executive for instance on 26th march 2015, the president in the state of the nation address faulted the ongoing police vetting process presided over by the commission as slow, demoralizing and allegedly as having a negative impact on the overall reform agenda in the police service.

Oversight Authority

The Independent Policing Oversight Act No.35 of 2011 on its part establishes the Independent Oversight Authority purposed to hold police accountable to the public in the performance of their functions. The civilian Authority was established to give effect to the provisions of Article 244 of the Constitution that requires the Kenya Police Service to strive for professionalism and discipline within its membership.

Another key role of the Authority is to ensure independent oversight of the handling of complaints by the Police Service. The most celebrated intervention by the Authority is High Court Petition No. 390 of 2014 in which the Authority successfully obtained orders quashing the 2014 police recruitment process on the premise that it was marred by allegations of corruption, tribalism, nepotism, professional malpractice and kindred integrity issues.

National Government

The Fourth Schedule of the Constitution provides that functions of the National Government include national defence and police services. This Constitutional provision limits matters security chiefly to the National Government. However, Article 189 of the Constitution makes handy provision for the co-operation between National and County Governments through support, exchange of information, coordination of policies and administration and enhancement of capacity.

The two levels of Government may set up joint committees and authorities in the performance of their functions in terms of the provisions of Article 189(2) of the Constitution. Matters security under the County Governments is legally cushioned by the County Government Act.

A prime objective of county planning is to inter alia make reservations for public security thus in planning activities, the County Government must Willy- nilly make

provision for County security. The provision of security vehicles by the County Governments of Machakos and Mombasa to the police as part of measures in boosting security infrastructure is an impressive showcase of this duty. In terms of Section 41 of the National Police Service Act, community policing is a flagship responsibility. The County Policing Authority chaired by Governors and with membership of persons appointed by the Inspector General, elected members nominated by the respective County Assembly and representatives of the community is a significant display of the fundamental essence of community policing at the county level.

By and large matters security are significantly addressed both in Statute and in the Constitution. It is therefore, prime that the various actors in the realm of security act in consort and with reliable consultations to enable us realize a secure and peaceful motherland- Kenya.

Mr. Owiye is the Manager in charge of Investigation and Prosecution at the Independent Electoral and Boundaries Commission (IEBC)

IS THE Judiciary Working Hard Or Hardly Working?

“The Judiciary must realise that substantial justice is not achieved by the volumes of cases they dismiss for want of prosecution but those of interested litigants that are resolved quickly and justiciably.” -Mr. Thuita

Earlier this year, the High Court undertook a radical move to dismiss old cases towards clearing the backlog, which has been giving the Judiciary a bad name. The exercise was said to be based on the Case Audit and Institutional Survey 2014.

According to the first statement in the Foreword Section of the Survey Report authored by Chief Justice g, it was stated that “…One of the barometers of effectiveness in the Judiciary is the size of the back log in the court system”. Internally within the Judiciary therefore, this clog in the courts was understood to be caused by the inactive files that had continued filling up registry cabinets.

Over 15,000 Files

The Judiciary then commenced an exercise whereby the first phase involved the listing for dismissals, over 15,000 files in the Nairobi High Court Civil Division. The exercise has been replicated in other parts of the country and divisions of the court.

The question to ask is whether this is the best pill for the clog and delayed justice for litigators. To the Judiciary officials, this is the best thing that has ever happened and during the state of the Judiciary and Administration of Justice Annual Report, the Chief Justice will gladly brag about how his institution has “resolved” more that 100,000 old cases in 2015 alone. Never mind that the resolution was by mere dismissals without hearing parties. To others however, particularly the legal practitioners, this is yet another serious goof by the Judiciary.

In two weeks of February when numerous Judges congregated in Nairobi to dismiss old cases, their stations were largely left unattended and litigants in active files lost out of rare hearing dates while the dispensers of justice were away handling “ dead” files whose owners had long abandoned them to die a natural death.

The Judiciary must realise that substantial justice is not achieved by the volumes of cases they dismiss for want of prosecution but those of interested litigants that are resolved quickly and justiciably.

Judicial Brag

While the Judiciary will brag about the number of cases they have dismissed, there is no reflection of joy in the populace. There is no jubilation that pending cases have been resolved. No matter how many cases are dismissed for want of prosecution, the court users shall continue crying for hearing dates for their case.

In Nairobi courts, litigants are now accustomed to the fate of having court diaries declared permanently full. Instead of wasting time on abandoned cases, it would serve the Judiciary better if they can expedite the hearings of cases that litigants are interested in. Accordingly, as long as it keeps directing its energies in unnecessary exercises, the Judiciary will remain hardly working.

On the flipside though, the Civil Service Week between the 15^th to the 19th June 2015 has shown that the exercise of dismissing old cases can serve another purpose. This process has become a training ground for newly admitted Judges.

After their induction and “internship” under the old Judges, the first cases the newly admitted Judges will have to contend with are old inactive files. This is a positive step instead of having seasoned Judges leaving their busy stations to handle matters whose parties lost interest eons ago.

-Mr Thuita is an Advocate of the High Court of Kenya. He can be reached at gourdarrow@gmail.com

Single Mothers’ Pain Of Raising Child Solo Eased

Child Law Article 53 (e) of the Constitution which provides that every child has a right to parental care and protection which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not.

Birth registration is a fundamental human right. It not only gives a child a recognized legal existence and identity, it is the sign that a child ‘belongs’ to a family, a community and a nation. It shows that a child has a place, and a stake, in all three.

Before the promulgation of the Kenyan Constitution 2010, no right on support and maintenance of a child born out of wedlock accrued on the father where there was no legal relationship between the mother and the father. The only remedy that the mother had was in the customary law, which provides for pregnancy compensation, but the compensation is usually paid directly to the mother parents, and does not necessarily benefit the child. Name and Nationality Article 53(1) (a) of the Constitution guarantees every child the right to a name and nationality from birth.

The legal position after the promulgation of the Constitution is that the position of joint responsibility of both parents, whether married to each other or not, is guided by Article 53 (e) of the Constitution, which provides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child.

This provision was upheld in a landmark case of Zak & Another vs. The Attorney General & Another (2013) KLR. In this case, the petitioner challenged the Constitutionalism of Section 24(3) of the Children Act and Section 25. She argued that these sections infringed Article 27(1) of the Constitution, which states that every person is equal before the law and has a right to equal protection and equal benefit of the law. In line with that argument, Justice Mumbi Ngugi stated that it was unconstitutional for the Children Act placing the responsibility of the children born outside marriage only on the mother. In this regard, the provisions of section 90(a) and (e) of the Children Act were unconstitutional, considered alongside the provisions of Section 24(3), which places the responsibility of the child on the mother at the first instance where the mother and the father are not married.

Father and Mother

Under Section 12 of Births and Deaths Registration Act, no person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require that the father and mother were married according to law or, in accordance with some recognized custom. The foregoing provision indirectly shelters the man who gets children out of wedlock. This provision in effect ends up punishing and disadvantaging not only the child but also the mother of the child born out of wedlock.

Under Article 27(4), the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. Section 5 of The Children’s Act says no child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, color, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.

Obviously the child’s surname flows from the parents’ family names. The fact that they are born out of wedlock should not form the basis for discrimination at all. A statute that countenances and allows the non-disclosure of the father simply because the parents are not married has to be interrogated.

Basically there is a need to protect these children under Article 27 of the constitution and Section 5 of the Children’s Act so as to bring them to par with the children born within the marriage.

– Ms. Simani is a lawyer

Executive Must Trust Their Choice Of Security CS and IG To Deliver

The role of County Governments in security governance in Kenya has been a critical policy question since the inception of devolution. Kenya has experienced insecurity and attacks in Tana Delta, Suguta Valley, Garissa, Westgate Shopping Mall, Bungoma, Kitui, Moyale, Mpeketoni in Lamu, Mandera, and Baringo.

This essay advances three key arguments: Security is a devolved Executive function; President Kenyatta has unconstitutionally recentralized security; and Kenyatta has taken policy and administrative measures that undermine constitutional democracy and county roles in security.

Executive Powers

First, the Constitution guarantees security as a human right and devolves Executive powers including security. The National and County Government can perform this function through mutual cooperation and consultation as envisaged under Article 6 of the Constitution. Some legislation envisages security as a concurrent function. For instance, the National Police Service Act provides for county policing.

Alternatively, we argue that County governance is inextricably intertwined with national security functions. Security as a human right under Article 29 is strengthened by imposing duties on the President as President, as Commander- in-Chief, or as Chair of the National Security Council. Duties are also imposed on the Executive and Government to ensure security. Just like the Magna Carta 1215, the fact of public taxation is a foundation of human rights and security. The Constitution has also fundamentally altered the security organs that existed under the 1969 Constitution.

The Kenya Police Service, Administration Police Service and the National Intelligence Service are responsible for internal security. So far, these agencies are operated as if they are only answerable to the President or National Government. These trends by President Kenyatta are the cornerstone of the emerging constitutional (dis) order in Kenya. Kenyatta is reversing constitutional gains made under the new constitutional order faster than his preceding biological, political and godfathers of Kenyatta, Moi and Kibaki.

For instance, both Inspector Generals of Police Mr. Joshua Boinett and his predecessor Mr. David Kimaiyo have operated as if they should be taking orders from Kenyatta. Boinett attempted to implement Kenyatta’s unconstitutional order that 10, 000 recruits report for training contrary to a court order. And following the attack at Mpeketoni in Lamu, Kimaiyo imposed a curfew and gave credence to Kenyatta’s partisan and tribal statements.

Kenyatta had alleged that the attack in Lamu was politically motivated ethnic violence against a Kenyan community (Kikuyu) and that it was not an Al Shabaab terrorist attack. Then attacks of non-Kikuyu followed in Mombasa and elsewhere with no protection from an ethnicised security system.

Interior Security Minister Hon. Maj-Gen (Rtd) Joseph Nkaissery addressing the media after the recent terrorist attack at Garissa University

 Information Sharing

Hence County Governments are denied authority on security, even on logistics and information sharing, of the security function. The refusal to consult, cooperate and coordinate with the County Government and security structure has contributed to ineffective response as was witnessed in the Garissa University College massacre.

Second, President Kenyatta’s Government is increasingly ignoring key constitutional provisions on security. The Kenyatta Presidency sponsored the Security Laws (Amendment) Bill, 2014, which he promptly assented to. Significantly, High Court Judge Justice George Odunga declared eight Sections of the Security Laws unconstitutional.

The Court of Appeal has substantially upheld Justice Odunga’s decision. Kenyatta in a move to re-introduce the discredited provincial administration assigned County Commissioners new roles and made them answerable only to the President and the National Government.

Progressives argue that this contravenes the Constitution and undermines the mandate and jurisdiction of the Officer Commanding Police Division, the Governor, and the relevant County Executive Committee. This also contravenes section 17 of the Sixth Schedule, which requires the National Government (not the President alone) to restructure the provincial administration to respect the devolved system of governance within five years after the effective date (my emphasis).

Third, the Government is adopting policy measures that undermine the constitutional design and intendment on security. Indeed Kenyatta is systematically reversing constitutional gains made under the Constitution as well as obstructing justice. Kenyatta aerially supervised the destruction of a ship, which was to be used as evidence in the case of Republic v. Yousuf Yaqoob & 11 Others [2014]. Such actions exemplify Presidential lawlessness and are a threat to constitutional democracy, the Rule of Law and security in Kenya. This is also an invitation to civil disobedience and even revolution or the breakdown of constitutional order.

The Kenyatta Presidency is also endangering constitutional democracy by disregarding civilian oversight of security agencies as required by the Constitution. For example, the President wears military uniform in public and has increasingly militarised the public service and internal security. Remarkably the Constitution subject security to civilian oversight. Civilian oversight is growing to be an important component of external police accountability in many constitutional democracies.

In order to address these security challenges, Governors who are democratically elected are in a better position to handle security at the county level. This will help entrench the constitutional requirement that National and County governments should be inter-dependent and conduct their mutual relations on the basis of consultation and cooperation. Currently, the Governor’s role that relates to security is restricted to chairing the County Policing Authorities (CPAs) whose function is mainly oversight without any role in security administration. The CPAs are yet to be operationalised.

In conclusion, the Presidency and the National Government must implement the Constitution and involve the County Government in addressing security. The practice in India, Canada, US and Nigeria with devolved systems indicates that county and public participation will help improve security in Kenya.

Prof Ben Sihanya is a Scholar, ©, Intellectual Property, Constitutional Democracy & Education Law at the University of Nairobi Law School and Public Intellectual, Mentor, Poet and Advocate at Sihanya Mentoring & Innovative Lawyering sihanyamentoring@gmail.com

Successful Terrorism Trials

 “It is the duty of the Director of Public Prosecution (DPP) to make necessary

innovative applications to ensure successful investigations and prosecution

without infringing on suspect(s) constitutional rights.” Mr. Wakahiu

Kenya is party to several international human rights treaties. The treaties include the

Universal Declaration of Human Rights, The International Convention on Civil and Political Rights and The African Charter on Human and People’s among others. Chapter Four of the Kenya Constitution deals with the Bill of Rights.

Investigating, prosecuting and trying terrorists’ cases invariably involve matters of the Bill of Rights. The court has to strike a balance between national security policy and the protection of the suspect’s fundamental rights. The doctrine of the Equal Protection of the Law demands that terrorist suspects be treated like any other suspects with the respect and dignity afforded to all other suspects.

Constitutional Hurdles

The bombing of the American Embassy in Nairobi, Kikambala bombing in Mombasa, Westgate massacre, Mpeketoni raid and the Garissa University attack indicate that Kenya should have a policy on National Security as a top agenda. Courts acknowledged this need in the case of Salim Awadh Salim & 10 others Vs Commissioner of Police & three others and Zuhura Suleiman v The Commissioner of Police & three others [2010] eKLR).

The Government has made frantic efforts to track and arrest terrorists but their efforts in investigations and prosecution of the cases have met tough constitutional hurdles in the nature of Bill of Rights. Recently, Parliament passed the Security Laws (Amendment) Act, No 19 of 2014 (“SLAA’), the compressive legislation dealing with security. In Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR the court declared some of its provisions unconstitutional.

In the case of US v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), the suspect, an American went to study abroad in Saudi Arabia. Saudi authorities suspected that he had affiliations with a terrorist cell called al-Fq’asi. He was arrested in Medina by the Saudi Special Counter terrorism forces, the Mabahith and transported to Riyadh and questioned by the Mabahith whereby some Federal Bureau of Investigations (FBI) agents observed the interrogation upon a request by the US Government.

Abu Ali made several incriminating statements before he was taken to the US to stand a terrorism trial and charged with terrorism- counts. The Judge introduced a deposition procedure, which enabled the US government to take the Mabahith’s statements without infringing on Abu Ali’s constitutional rights. The Judge gave directions that two attorneys, lead by Abu Ali’s leading attorney attends the deposition in Saudi Arabia, the third attorney was sitting with Abu Ali in Virginia while two Government attorneys and an interpreter sat in Saudi Arabia.

A live two-way video link was used to transmit the proceedings to the courtroom in Virginia where the Judge was sitting. A transcription by a court reported in real-time and separate cameras recoding the Mabahith on one side and Abu Ali on the other was accorded. The Judge found that Abu Ali’s statements to the Saudi Mabahith were voluntary and not as a result of “gross abuse” or “inherently coercive conditions”. The Judge eventually convicted him noting that the alleged defects in the searches and indictments “did not violate Abu Ali’s rights under the Fourth or the Sixth Amendments

Successful Prosecution

In Kenya, Article 49 of the Constitution deals with the right of an arrested person. There are also four important stages in a criminal trial that includes initial investigations, arrest, further investigations while the suspect is in police custody and formal charging. The Director of Public Prosecution (DPP) and the police are fully involved in the first stage of the initial investigations.

The Court comes in the second, third and fourth stages. The second and third stages are critical. It is when the investigator can get first-hand information from the suspect personally. However, there lacks self-supervision methods to monitor the police and control cases of abuse of the suspects’ rights by the police. The implementation of Article 49 is entirely in the hands of the investigators.

Developed countries have devised ways of handling this dilemma of police self-supervision. There is increased need to get information from suspects without infringing on their constitutional rights to information, privacy and many others. Technology has come in as the answer. It is the duty of the Director of Public Prosecution (DPP) to make necessary innovative applications to ensure successful investigations and prosecution without infringing on suspect(s) constitutional rights.

The successful prosecution of terrorist cases will depend largely on the DPP’s (and the police’s) input in investigations and prosecution. This is therefore a wake –up call for the DPP to come up with more innovative methods. Prosecuting Abu Ali’s case was successful because of the availability of technology, which enabled deposition and instantaneous transmission. It is for the Judiciary in Kenya to figure how adopts technological developments and innovations in the war against terrorism.

-Mr. Wakahiu is an Advocate of the

High Court of Kenya