On September 21, a day set aside for the commemoration of international peace, terrorists aligned with Al-Shabaab unleashed horror on the Westgate shopping mall in Nairobi, Kenya. Many different views are held about what happened, how such an attack was even possible, and why it occurred, accompanied by a range of proposals about what Kenya needs to do to protect itself and prevent such a tragedy from happening again. Thus far, the solutions that have been put forth are worrisome for their illegality.

The first proposal by the Parliamentary Committees for Defense and National Security was for the United Nations and Kenyan authorities to close down the Dadaab refugee camp and send all the refugees back to Somalia. The closure of the camp would violate national, African, and international obligations contained in Article 18 of the 2006 Kenyan Refugees Act, Article 2 of the Convention Governing the Specific Aspects of Refugee Problems in Africa, and Article 12 of the African Charter on Human and Peoples’ Rights, all of which provide for a right to asylum and prohibit mass expulsions. These international and national laws also prohibit Kenya from identifying and isolating for expulsion the nearly 550,000 refugees of Somali origin who are the majority of Kenya’s refugee population. Many Somalis are confined at camps like Dadaab, where they have also been targets of terror attacks.

This knee-jerk response by the joint committees fails to take into account some of the factors that have contributed to Kenya being fertile ground for Al-Shabaab recruitment. A 2011 report of the UN Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 1916 (2010) suggests a link between the rise of Al-Shabaab in Kenya and funding derived from Kenya’s real estate industry, local businesses, and legal and illegal cross-border trade in goods, people, and weapons. The report also highlights the expansion of Al-Shabaab’s networks to non-Somali Kenyans who raise funds, recruit fighters, and conduct orientation and training sessions in the country. One such outfit, which began as a self-help group in Majengo, a slum area, transformed from a rights-based association to one of the largest Al-Shabaab support groups in Kenya, with formal structures in both Kenya and Somalia. The same UN report identified a parliament employee who sits on the committee of a local mosque as an advisor, financier, and recruiter for Al-Shabaab. The availability of socioeconomic support networks for Al-Shabaab is in part enabled by pervasive corruption and minimal controls on money in the country.

Although the Kenyan government does attempt to monitor civil society organizations like the self-help group above, its efforts have the potential to muzzle legitimate institutions through the Public Benefit Organisations Act. Instituted early in 2013, the act restricts the environment in which nongovernmental organizations (NGOs) operate. Among other things, it requires NGOs to reregister, disclose their sources of funding, and submit personal information about their staff members. The law was allegedly passed to manage NGOs who, in the pre-electoral period, were perceived to have been partisan against the ruling coalition.

Parliamentary debates after the Westgate siege also articulated the need to “strengthen” Kenya’s counterterrorism act, passed in late 2012, to prevent similar attacks from occurring. The act legalized Kenya’s rendition practice—that is, the covert sending of suspects to other countries to be interrogated or detained indefinitely—contrary to the constitution’s fair trial provisions, which cannot be modified. As it is, the secrecy provisions allowed by this legislation in the name of national security, which permit extended detention, make it hard to gather enough evidence to pursue a case against the government and get enough information to defend a suspect adequately.

As the custodian of the constitution, the judiciary has a responsibility to assess and repeal any inopportune laws and actions if they are found to be against the letter and spirit of the constitution, as well as against the continental and international norms to which Kenya has adhered. To prompt such a reassessment in Kenya’s judicial system, a case needs to be brought before the courts. Victims of rendition or their families may also want to take advantage of the East African Court of Justice (EACJ) and the African Commission on Human and Peoples’ Rights to seek redress for the violation of their rights.

The government of Kenya, rather than further entrenching illegality, should instead embrace and operationalize the provisions for mutual legal assistance and interstate cooperation under the East African Community (EAC) framework and Africa’s Counter-Terrorism Convention (Algiers Convention) and the 2004 Protocol, since terrorist operations are not confined to definite borders. The Algiers Convention, in addition to providing for better cooperation and sharing of information among states with regard to counterterrorism, also provides for clear extradition procedures (as opposed to illegal rendition) and for the respect of the rights of persons arrested on allegations of terrorism, including their right to a fair trial. The protocol, which is yet to become operational, sets out clearly the responsibilities of various regional and continental actors, including the coordination role of the African Union’s Peace and Security Council and the harmonization role of Africa’s Regional Economic Communities. The counterterrorism laws in the region also need to be harmonized. They are as diverse in their definition of and punishment for terrorism as they are in the procedures to be followed when dealing with cases of it. Uganda, for instance, sets the death penalty for terrorists and anyone who supports them and allows surveillance and the interception of communications on the order of the designated minister. Meanwhile Tanzanian and Rwandan counterterrorism acts both provide for extradition in line with international standards, with Rwanda’s extensive legislation describing what constitutes terrorism, as well as grounds for refusing cooperation and extradition.

The panic and fear arising from the Westgate attack may lead to draconian measures that are neither legal nor effective and in direct contradiction to the Kenyan constitution, whose provision for principles of national security includes the tenet that it “shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms”.1Kenyan Constitution, chapter 14, part 1, section 238. Terrorism cannot be effectively controlled without reforms that are both principled and legal.

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    Kenyan Constitution, chapter 14, part 1, section 238.