NAIROBI, Kenya, Dec 29- When Kenyans gave themselves a new constitution in 2010, they fundamentally changed their relationship with the government with regards to their rights and entitlements as well as the obligations of government towards them.
To properly effect these changes, the Attorney General and Parliament were supposed to embark on a process of review of existing laws to ensure that they complied with the new constitution that would require a raft of amendments.
They were also supposed to write and pass new laws that would enable the enjoyment of these rights.
Through this process, many laws, such as the Access to Information Act, the Data Protection Act and Official Secrets Act were either passed or amended.
Part of the rights that were reemphasized and enshrined in our new law includes the right to privacy which entails the state or condition of being free from being observed or disturbed by other people, especially the state; freedom of expression which entails the right to seek, receive and impart information regardless of frontiers and in any medium; the right to information; and right to a fair trial.
It is noteworthy that Articles 24 and 25 of the Constitution introduced a very important feature that prescribed which rights were absolute as well as how or when the rest of the rights were to be justifiably and legally limited.
The law entails that any person purporting to limit any rights would have to satisfy that the limitation must be clearly and concisely written in the law; necessary and proportionate, and must pursue a legitimate aim such as the protection of national security, public health et cetera.
Furthermore, the burden of proof to justify the limitation lies with the person attempting to limit that right.
It is through the above lenses that we have to look at the recent changes to the Official Secrets Act, a law meant to protect and preserve state secrets and security.
It provides that the CS in charge of security can issue a warrant requiring any person who owns a telecommunications apparatus used for sending and receiving any data from any place outside Kenya to produce the original transcripts of such data and imposes a one million shilling fine or one-year imprisonment.
Sadly, amendment as passed provides that the CS ‘may’ apply to the High Court for the orders. The word ‘may’ in law denotes that it is the discretion of the CS to seek judicial oversight.
Even the Prevention of Terrorism Act (POTA) requires the state to seek permission from the high court before planting listening devices on suspects.
Because judicial oversight appears not to be mandatory, the standard for search is highly subjective and potentially limitless thereby posing a danger to journalists, opposition operatives, dissenters, human rights or environmental activists.
While protection of national security can be a genuine and legitimate aim for restricting freedom of expression and the right to privacy, the Official Secrets Act and its proposed amendment as a whole fail to strike the required balance between the public’s rights, the interplay of rights and national security interests.
For instance, being compelled to hand over your private communications to the state without a warrant from the courts may violate the provisions of Article 49 and 50 rights of persons arrested and fair trial such as the right to remain silent; right not to be compelled to make any confession or admission that could be used in evidence against the person; and the right to refuse to give self-incriminating evidence.
The right not to incriminate oneself safeguards from the state using evidence obtained through methods of coercion or oppression in defiance of the will of the accused including the obligation to respect the will of an accused person to remain silent.
Be that as it may, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purposes of DNA testing.
Moreover, the wording in the Official Secrets Act includes a justification by the CS of ‘public interest’ which has not been defined and is thereby overly vague.
Since searches or access to private information infringe the right to privacy, they must be conducted in terms of the constitution which comply with the provisions of Article 24.
It has been said that the existence of safeguards to regulate the way in which state officials enter the private domains, including communications of ordinary citizens, is one of the features that distinguish a democracy from a police state.
The Author, Demas Kiprono, is a Constitutional and Human Rights Lawyer.
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