In December 2014 amid protests by opposition members and civil society, a hurriedly drafted Security Laws (Amendment) Act was swiftly pushed through Parliament and signed into law by President Uhuru Kenyatta. On 2 January 2015, Kenya’s High Court suspended the implementation of 8 clauses of the controversial law on grounds of perceived incompatibility with constitutional safeguards. The Security Act amends 22 other laws and places a number of restrictions on the freedoms of expression and assembly. It empowers the Cabinet Secretary, a senior government official to designate areas and times for public gatherings and processions, and criminalises the publication of offensive material that can potentially cause fear and alarm to the public or disturb public peace. In Kenya’s volatile political climate, these provisions could open the door for arbitrary infringements on democratic rights.
The Security Act also imperils freedom of expression by prohibiting individuals and media organisations from broadcasting information that can undermine investigations or security operations to curb terrorism without the approval of the National Police Service. It further criminalises persons who publish photographs of victims of terrorist attacks without authorisation from the police. The Act also criminalises anyone who publishes information that can be interpreted to directly or indirectly encourage others to commit terrorist acts. Additionally, the Security Act vastly expands the powers of security agencies to monitor communication, arrest and detain accused persons for up to 90 days without charging them and empowers prosecutors to withhold evidence considered sensitive from accused persons.
The Security Act follows attempts to amend legislation dealing with freedom of association namely through miscellaneous amendment bills in 2013 and 2014. Initially proposed amendments to the Public Benefit Organisations (PBO) Act on 30 October 2013 among other restrictive provisions sought to deny civil society organisations, access to resources by mandating that they should not be receiving more than 15% of their funding from sources outside the country.
These proposed amendments were sent to Parliament twice in 2014 and withdrawn on both occasions, on the grounds that members of Parliament could not deliberate on them before going to recess and subsequently because the leader of the Majority in Parliament had not received requisite reports from various agencies by the time the proposed amendments came to Parliament. A task force comprising stakeholders from all major sectors has now been created to ensure inclusive participation in discussing future amendments following the submission of a third round of amendments. However, civil society leaders remain anxious about the future of the sector in Kenya.
On 16 December 2014, the NGO Coordination Board arbitrarily cancelled the registration of 510 NGOs stating that they had failed to submit tax returns. In addition, 15 NGOs working mostly in northern Kenya and the coastal areas were accused of being conduits for financing terrorists. The closure of the NGOs was part of the government’s immediate response to three separate terrorist attacks which led to the deaths of at least 64 civilians in Mandera County and Nairobi between November and early December 2014. Some of the organisations which were deregistered focused on grassroots and community development, the rights of women, children and the disabled, education and environmental rights while others were charitable and faith-based organisations. By 2 January 2015, 179 deregistered NGOs had been reinstated following condemnation from national and international civil society organisations. The NGO Coordination Board confirmed that the organisations had submitted audited accounts and made payments for outstanding penalties for noncompliance with the law. However, this action has created a climate of fear and uncertainty amongst civil society in the country.
Similarly, Hassan Guyo, a human rights activist and founder of the organisation, Strategies for Northern Development (SND) was shot dead by security forces in Moyale in the north eastern region of Kenya on 7 August 2013 as he carried out investigations at the scene of demonstrations that had been violently repressed by security forces.
Additionally, individuals perceived to be witnesses in Kenya’s 2007-2008 post-election violence investigated by the International Criminal Court (ICC) and human rights defenders advocating for justice before the ICC have been particularly targeted over the last few years. On 20 September 2013, the UN Special Rapporteur on the Rights to Freedom of Assembly and Association, Maina Kiai was threatened by a group calling itself the Nyaribo Support Group. The group threatened to burn down the house of the Special Rapporteur amid false reports that he was to testify in the trial of President Kenyatta at The Hague.