NAIROBI, Kenya, Apr 12- Kenya has launched key guidelines on terrorism and terrorism financing, intended to be a most practical, daily use guide, for investigators, prosecutors, and judicial officers handling terrorism-related cases.
The guidelines were developed by a multi-agency task force that included criminal justice actors and human rights organizations like the International Justice Mission-Kenya.
The guidelines are aimed at ensuring that there is effective coordination, collaboration and cooperation in the investigation and prosecution of the vice.
They will also enhance the organizational partnership between investigative agencies and the Office of the Director of Public Prosecutions (ODPP).
The guidelines bring together more than 10 law enforcement agencies that are directly and indirectly responsible for investigating terrorism and terrorism financing.
The guidelines were being developed since Mid-January this year and were launched on Tuesday. The initiative was funded under the EU Trust Fund for Africa.
Kenya has been in the past a victim of terrorism attacks, that have over the years claimed hundreds of lives and led to massive destruction of property.
With the sophistication of terrorism and the ever-imminent threat in the country, stakeholders speaking during the launch said there was a need for a collaborative approach to investigations and prosecution of terrorism and related offences.
“They are based on the primary laws governing the mandate and operations of each of the agencies,” Director of Public Prosecutions Noordin Haji said.
“The guidelines complement the existing legal framework and operationalize collaboration, cooperation and coordination amongst the agencies in counter-terrorism and counter financing of terrorism.”
Some of the criminal justice sector agencies that were involved in the development of the guidelines are the National Police Service, National Intelligence Service, National Counter Terrorism Centre, the ODPP among others.
Under the guidelines, the agencies involved in fighting the vice are obligated to share information, that can help in investigation, “to detect, prevent or investigate terrorism and terrorism financing, and terrorism-related offences.”
To enhance information sharing, agencies are obligated to collaborate, cooperate and coordinate with each other to mutually exchange information on terrorism and terrorism financing.
“The objective is to leverage resources and expertise while improving the ability to detect, prevent and effectively investigate and prosecute terrorism and terrorism financing. Agencies to that end, shall ensure mutual exchange and mutual information sharing,” Michael Sang, who Is the Head of Counterterrorism and International, Transnational and Organised Crime Division said.
While information sharing is encouraged, agencies are curtailed from sharing with a third party without the authorization of the agency that provided such information.
As it is in Section 40A of the Prevention of Terrorism Act, the guidelines indicate that NCTC shall establish and maintain a database of information on terrorism, and terrorism financing to assist the other agencies in executing their mandates.
The agencies are expected to share information with NCTC.
“Each agency shall take reasonable measures to ensure that information shared in accordance with these guidelines is safeguarded,” reads the guidelines under the confidentiality and security of information clause.
The guidelines also focus on the protection of data and the role of the respective agencies.
As it is in the law, the guidelines pointed out that the Directorate of Criminal Investigations Anti-Terror Police Unit shall be the lead agency investigating suspected cases of terrorism and terrorism financing.
“The DCI-ATPU shall rely on information from any agency in the course of investigations leading to the arrest of persons suspected of terrorism and terrorism financing,” reads the guidelines.
“Save for exceptional circumstances, investigative agencies should inform the ODPP.”
Further, the guidelines indicate that “when an arrest is being contemplated, the ODPP and the Investigating officer will ensure that a pre-arrest conference is held as soon as possible after notification from the investigating officer to the ODPP.”
During the conference, the prosecutor is expected to advise on possible offences to charge, lines of inquiry to take, admissibility of evidence, the potential need for expert evidence, possible legal applications, how to obtain evidence from abroad among other areas.
They also include advice on extradition of individuals from abroad, how evidence should be presented in court, and notification to various government agencies like the Kenya Revenue Authority (KRA), Financial Reporting Centre (FRC), Ethics and Anti-Corruption Commission (EACC) and Assets Recovery Agency (ARA).
The guidelines also focus on the need for community engagement in the war against the vice and its financing.
The agency tasked with that is NCTC in accordance with the Prevention of Terrorism Act (POTA) and the National Strategy to Counter Violent Extremism.
Also in the guidelines is considerations to be taken during the detention of remandees and convicts by the Kenya Prisons Service and respect for human rights.
“All agencies shall promote and protect human rights and the rule of law in exercising their mandate,” reads the guidelines.
They are specifically mandated to respect the rights under Article 25 of the Constitution as well as international treaties and conventions to which Kenya is a party.
Speaking during the launch, IJM Country Director Benson Shamala, Amnesty International Executive Director Irungu Houghton and Haki Africa boss Hussein Khalid insisted on the need for respect of human rights in the war against terrorism.
Shamala noted that the Missing Voices coalition documented 187 cases of police killings and 36 cases of enforced disappearances last year.
Out of the 36 cases, four of the victims were later found dead while two were found alive and 30 are still missing to date.
“Most of the cases of enforced disappearances were as a result of anti-terrorism operations,” he said.
He pointed out that, “these guidelines are progressive as they recognizes the rights of victims of crime and witnesses. In the context of criminal justice, the rights of suspects have traditionally been the focus of human rights. However, it is now well established that the human rights of victims of crime and witnesses also require attention, and specifically since we have a law to that effect, that is the Victim Protection Act.”
“Agencies should therefore be sensitive to the needs of victims of terrorism to avoid revictimization and re-traumatizing them. Where possible, they should be supported psychologically due to the trauma they have experienced.”
Inspector-General of Police Hillary Mutyambai said NPS will work closely with other agencies including communities, to defeat the vice of terrorism.
Governor Central Bank of Kenya Dr. Patrick Njoroge said the guidelines will lead to more prosecution and conviction of terrorism suspects, “while protecting their rights.”
He said with the unique position of Kenya in the region, he said the guidelines were timely, to ensure the vice is defeated.
He however cautioned that the threat is still real and all measures must be adopted to prevent and deter terrorist acts.
“As terrorism financing is involved, Kenya needs to adopt a collaborative approach to deal with the menace,” he said.
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