Kenya has on at least two occasions been the target of terrorist attacks, yet our response has continues to be initially inadequate and then absolutely over-the-top in terms of human rights violations. The Al-Faisal case lays bare the inability of the government to balance guaranteeing our security with safeguarding human rights.
At the end of 2009, Al-Faisal entered Kenya through the Lunga Lunga border point where, as the Minister of Immigration has explained, the computerised vetting system was not operational. Thus, Al-Faisal had a valid tourist visa. The government proceeded to detain him without trial at the Industrial Area Remand Prison and the Jomo Kenyatta Airport for an alleged immigration offense—preaching without an appropriate entry (work) permit. Detention without trial is a human rights violation.
His unconstitutional and illegal detention resulted in protest through a demonstration by Kenyan Muslims on January 15, 2010 in Nairobi. Despite having notified the Kenya Police Force of the proposed demonstration, the Kenya Police Force unconstitutionally and illegally denied ‘permission’ for the same. Denial of the right to freedom of assembly is also a human rights violation.
This denial unnecessarily inflamed an already volatile situation. Some of the protesters allegedly brought arms to the demonstration. The Kenya Police Force allowed the protestors to be attacked by passers-by before joining in themselves. The loss of life, injuries inflicted and property destroyed that ensued were violations of the right to security and safety of the person and of the right to property—more human rights violations.
The Kenya Police Force proceeded to hunt down alleged Al-Shabaab adherents. They did so through, in effect, racial and religious profiling—descending on areas known to be populated by both documented and undocumented refugees. The subsequent harassment, detention and arrest, particularly of Kenyans of Arab or Somali descent and of the Muslim faith, are yet more human rights violations—of the right to be free from discrimination on racial and religious grounds. Some of those picked up in these swoops have complained of extortion by the Kenya Police Force to effect their release.
The KHRC [1] and the FIDH are concerned with Kenyans’ security and supports counter-terrorism measures in line with human rights.
The KHRC and the FIDH condemn all measures that violate human rights, escalate religious tensions and provide fodder for the growth of religious extremism.
Kenya has signed twelve international and regional counter-terrorism conventions. It is important that Kenya implements its obligations under these conventions in a manner that upholds our international and regional human rights obligations, our Constitution and our law.
The KHRC and the FIDH therefore urges the government to:
– Pursue counter-terrorism in a manner that upholds all of Kenya’s international and regional human rights obligations, as well as our own Constitution;
– Implement the Ransley report on police reforms to ensure the accountability of any and all security service personnel who violate human rights;
– In advance of the same, appropriately equip all units of all security services currently addressing counter-terrorism to ensure better intelligence gathering and analysis with respect to counter-terrorism;
– Computerise all entry points to ensure the potential for monitoring visitors who may feature on global watch lists on organised crime, including terrorism, and ensure such monitoring is only done on the basis of clearly defined criteria and for clearly defined intelligence gathering and analysis purposes so as not to violate any visitors’ right to privacy;
– Rely more on judicial measures and intelligence gathering and analysis than on racial and religious profiling in all counter-terrorism measures;
– Respect Kenya’s protection obligations by consistently liaising with the United Nations High Commission for Refugees (UNHCR) to ensure that all refugees in the country are documented and thus not subjected to harassment, detention, arrest and extortion by Kenya’s security services;
– Uphold the right to freedom of assembly;
– Conduct all trials related to the protesters arrested on January 15, 2010 and persons arrested subsequently for alleged immigration offenses in accordance with the Constitution and the law.