Kenya 2022: Will new guidelines keep terrorists at bay ahead of elections?

By Jeff Otieno
Posted on Friday, 20 May 2022 10:06, updated on Monday, 20 June 2022 11:41

Kenya Defence Forces soldiers run to take their position at the Westgate shopping centre, in Nairobi September 24, 2013 after Somalia's al Shabaab Islamist group stormed the complex. REUTERS/Noor Khamis

As Kenya prepares for an election expected to be one of the most competitive in the country’s history, tensions are growing between two government agencies on how to effectively fight terrorism on Kenyan soil. Will the row threaten gains made thus far?

The 2019 terrorist attack on Nairobi’s Dusit D2 hotel and office complex, which killed 22 people, exposed a new tactic the Somali-based militant group Al-Shabaab had adopted on Kenyan targets.

Unlike other terrorist attacks – the Westgate Shopping Mall in 2013 which killed 68, and the Garissa University in 2015 which claimed the lives of 148 people – where foreign fighters were the ring leaders, the Dusit one had Kenyans as the main planners and executioners.

“We discovered that Al-Shabaab was giving Kenyan recruits more discretion and autonomy in executing its heinous activities in the country. We had to review our operations and ensure we were ahead of the terrorists,” says an investigation officer who did not want to be named because he is not authorised to speak to the press.

According to the officer, a change in tactics, which focused more on breaking local terror cells as well as networks, and also ensured operations remained top secret, has helped the anti-terrorism squad thwart many terror plots in the country.

A report released by UN experts in 2019 on the Dusit attack confirmed Al-Shabaab’s change of strategy ostensibly to increase its chances of success in operating in the country.

High level of teamwork

According to the Directorate of Criminal Investigations (DCI), which is in charge of the Anti-Terrorism Police Unit (ATPU), success in thwarting attacks has been possible due to high-level teamwork in monitoring, investigating and executing operations.

However, the new inter-agency guidelines on anti-terrorism being pushed by the Office of the Director of Public Prosecutions (ODPP) are causing jitters at the DCI.

The directorate is particularly uncomfortable with demands that the ATPU notify the Director of Public Prosecutions (DPP) before any arrest is made, arguing that such an arrangement risks blowing the cover on covert operations, thus putting the lives of officers involved at risk.

The guidelines developed by the ODPP and the civil society say ATPU shall – save for exceptional circumstances – inform the prosecutor when the unit is building evidence against a suspect and when planning to make an arrest.

Terrorism is an incident that happens in seconds. Any [divulgence] of secret information is not in the best interest of Kenyans.

The ATPU will also be required to inform the ODPP when planning to apply for search warrants or detention orders against the suspects or their property. “Where an arrest is made without prior notification of the ODPP, the ODPP shall be notified immediately,” the guidelines say.

Already, lawyer Dunstan Omari has filed a case in court to challenge the guidelines describing them as a threat to national security. “Terrorism is an incident that happens in seconds. Any [divulgence] of secret information is not in the best interest of Kenyans,” says Omari.

Insiders say the guidelines are likely to put the DCI and the DPP on a collision course as the two offices that they head hold divergent views on how to effectively fight terrorism.

Officers in the DCI are now accusing the DPP of pushing guidelines that will make it harder for the country to fight the crime, especially at a time when all security agencies are required to be on high alert due to the forthcoming general election and the never-ending political instability in neighbouring Somalia.

“[The] anti-terrorism job requires utmost secrecy for operations to succeed and also ensure officers’ lives are protected. Information sharing is not bad, but there are risks involved when you share too much,” says another investigation officer.

ATPU under scrutiny

The ATPU is an elite unit under the Director of Criminal Investigations, George Kinoti, who reports and takes orders from the Inspector-General of Police, Hillary Mutyambai. Consequently, for the information-sharing requirement to be fully accepted, the police chief will have to be completely convinced of the benefits.

Authorisation issues aside, security analysts argue that the involvement of the ODPP in anti-terrorism operations will definitely put the ATPU under more scrutiny unlike in the past.

“I don’t think the Directorate of Criminal Investigations will just rubber-stamp this requirement. It will definitely fight it since it views it as an encroachment on its turf by [the] Office of the Director of Public Prosecutions,” says Gregory Kariuki, an analyst of terrorism activities in the Horn of Africa.

The ATPU has on numerous occasions been accused of torture and forced disappearance

Kariuki argues that the guidelines might have been formulated to respond to increased accusations of alleged human rights violations by security agencies during anti-terrorism operations. The accusations have come from both local and international human rights groups.

“The ATPU has on numerous occasions been accused of torture and forced disappearance and these guidelines are meant to check the activities of the squad,” he says.

To support his argument, Kariuki refers to another requirement stipulating that at the point of arrest, terror suspects shall not be compelled to make any confessions or admissions that could be used in obtaining evidence against them unless as limited in law.

Last year, the Supreme Council of Kenya Muslims, the Law Society of Kenya and human rights organisations presented a list of over 30 individuals suspected to have been lawfully arrested and detained.

Irungu Houghton, the executive director of Amnesty International Kenya, believes the guidelines are good for the country and says they not only encourage collaboration among state agencies but also recognise the important role citizens play in monitoring and reporting threats associated with cross-border financial flows and community-based radicalisation.

“The guidelines are very significant. This is because breaking the law to disappear, torture or execute suspects harms the rights of suspects to a fair trial. By [triggering] resentment in their families and the communities, it produces more extremism and less respect for the rule of law,” says Irungu.

Coordination in fighting terrorism

Despite criticism from some security officers, the Director of Public Prosecutions Noordin Haji maintains that the guidelines are intended to enhance multi-agency handling and coordination of terrorism investigations. He adds that they will help seal gaps that may occur when a suspect is arraigned in court and also guide on possible offences to charge.

How do we balance to ensure our liberal and capitalistic economy is protected and not exploited?

“Reluctance to share information is no longer tenable. No single agency can effectively or single-handedly combat terrorism and its manifestations because this is a crime that cuts across multiple jurisdictions. Uncoordinated, unilateral actions by one agency can produce only limited results in the fight against such a complex threat,” says Haji.

Speaking during the launch of the guidelines in early April, Central Bank Governor Patrick Njoroge said the country’s geographic location and positioning as a major transportation and communications hub make it prone to terror activities.

“Given the transnational nature of terror financing, Kenya needs to adopt an inter-agency and holistic approach that is not limited to law enforcement agencies, but includes financial sector regulators, the registration of services, the Financial Reporting Centre and private entities such as banks in efforts to tame terrorism financing,” said Njoroge.

Haji concurs, citing the Dusit terror attack where money changed hands through Hawalas (informal method of transferring money outside the traditional banking system), M-Pesa (mobile phone-based money transfer service), banks and pseudo names.

“Kenya is an extremely important commercial hub and because of that terrorists will be more attracted to move money with much ease. The question is: How do we balance to ensure our liberal and capitalistic economy is protected and not exploited?”

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