Kenya

The Definition of Terrorism in Domestic Law

The 2012 Prevention of Terrorism Act lays down a definition of a “terrorist act” as being

an act or threat of action 

(a) which—
(i) involves the use of violence against a person;
(ii) endangers the life of a person, other than the person committing the action;
(iii) creates a serious risk to the health or safety of the public or a section of the public;
(iv) results in serious damage to property;
(v) involves the use of firearms or explosives;
(vi) involves the release of any dangerous, hazardous, toxic or radioactive substance or microbial or other biological agent or toxin into the environment;
(vii) interferes with an electronic system resulting in the disruption of the provision of communication, financial, transport or other essential services;
(viii) interferes or disrupts the provision of essential or emergency services;
(ix) prejudices national security or public safety; and

(b) which is carried out with the aim of—
(i) intimidating or causing fear amongst members of the public or a section of the public; or
(ii) intimidating or compelling the Government or international organization to do, or refrain from any act; or
(iii) destabilizing the religious, political, constitutional, economic or social institutions of a country, or an international organization:

Provided that an act which disrupts any services and is committed in pursuance of a protest, demonstration or stoppage of work shall be deemed not to be a terrorist act within the meaning of this definition so long as the act is not intended to result in any harm referred to in paragraph (a)(i) to (iv).S. 2, 2012 Prevention of Terrorism Act.

There is thus a limited carve-out for the exercise of certain fundamental rights.

Membership of a terrorist organization

The 2012 Prevention of Terrorism Act does not precisely define what it means to be a member of a terrorist group but criminalises it nonetheless. Section 24 of the Act defines the offence in the following terms:

A person who is a member of, or, professes to be a member of a terrorist group commits an offence and is liable, on conviction, to imprisonment for a term not exceeding thirty years.

The absence of an explicit definition of "membership" to provide elements of the offence, raises considerable challenges from the point of view of legal certainty,United Nations Office on Drugs and Crime, Kenya Training Manual on Human Rights and Criminal Justice Responses to Terrorism,  2016, 44-46.specifically, what points would need to be proven by the prosecution at trial. What is clear is that the group must fall within the category of a specified entity or one that is involved in the commission of a terrorist act as prescribed by the statute. 

In the case of Abdirizak Muktar Edow v. Kenya,Abdirizak Muktar Edow v. Republic (2019) eKLR.the Court confirmed process of proving membership of a terrorist group as established in the case of Mohammed Haro Kare v. Kenya.Mohammed Haro Kare v. Republic (2016) eKLR.The court observed that:

Membership to a terrorist group may not be so easily determinable. As such, the use of circumstantial evidence that points to a person’s association with such a group is vital and the prosecution ought to take steps to show a clear linkage between the actions of the [accused] in relation to the outlawed group.

The Court further suggested certain actions that may provide a useful guide, such as:

• a person being trained by the group on the use of weapons
• possession of weapons and articles associated with the group, 
• travelling to the known operations of the group, 
• being associated with members of the group,
• being together with members of the group or taking part in activities of the group.Mohammed Haro Kare v Republic (2016) eKLR.

Adherence to Global and Regional Terrorism Treaties

Kenya has adhered to most of the United Nations treaties on terrorism.

Kenya has also adhered to the primary African Union treaty on terrorism but is only a signatory to its 2004 Protocol.

Laws and Penalties for Terrorist Offences

A person who carries out a terrorist act is liable, on conviction, to a term of imprisonment of up to thirty years.S. 4(1), 2012 Prevention of Terrorism Act.Where a person carries out a terrorist act which results in the death of another person, he or she may be imprisoned for life upon conviction.S. 4(2), 2012 Prevention of Terrorism Act.

Second degree offences attract imprisonment for a term not exceeding thirty years. These include: 

• Where a terrorist act is committed but does not result in death
• Harbouring of persons committing terrorist acts
• Provision of weapons to terrorist groups 
• Recruitment of members to terrorist groups
• Training and directing terrorist groups and persons
• Membership of a terrorist group
• Kidnapping and hostage taking in committing a terrorist act

Third degree offences attract a penalty of imprisonment for a term not exceeding twenty years. These include:

• Collection or provision of property and services for commission of terrorist acts
• Entry into arrangements for the retention or control of terrorist property
• Dealing in property owned or controlled by terrorist groups
• Soliciting or supporting terrorist groups for the commission of terrorist acts
• Receiving training or instruction for the purpose of engaging in terrorist acts
• Obstruction of justice
• Intimidation or retaliation against witnesses of terrorism
• Disclosure of information, hoaxes or false information regarding investigation under the Act

Inchoate offences such as conspiracy to commit terrorist offences are also liable to imprisonment for up to twenty years.S. 23, 2012 Prevention of Terrorism Act.

Incitement through publication, distribution, or otherwise availing information for the incitement of terrorist acts attracts liability to imprisonment for up to thirty years.S. 27, 2012 Prevention of Terrorism Act.

The 2014 Security Laws (Amendment) ActAct No. 19 of 2014.amended various laws in Kenya, including the 2012 Prevention of Terrorism Act. Some of the amendments were later rendered unconstitutional by the High Court of Kenya, in its judgment in Coalition for Reform and Democracy (CORD) & 2 others v. Republic of Kenya &10 others.(2015) eKLR. Those that remained in force concerned, among others, an expanded definition of a person participating in terrorist acts,Section 63.possession of weapons for terrorist purposes and in places of worship or public places, failure of prevention of entry of weapons as offences under the Act,Section 62.and inclusion of radicalisation as an offence.Section 62.

Counterterrorism Capacities and Policies at Domestic Level

The Anti-Terrorism Police Unit (ATPU) is a specialised unit within the Directorate of Criminal Investigations (DCI) that is responsible for investigating terrorism-related cases.

Kenya's 2016 national strategy to counter violent extremism is not publicly available.

The National Counter-Terrorism Centre (NCTC) is a body created by the 2012 Prevention of Terrorism Act to coordinate national counter-terrorism efforts to detect, deter, and disrupt terrorism acts. It is an interagency body consisting of offices from various organisations including the Director appointed by the National Security Council as well as National Intelligence Service; Kenya Defence Forces; Directorate of Immigration; National Police Service; Office of the Director of Public Prosecutions; and the Attorney General (among others). Members of the NCTC are seconded to the Centre for a non-renewable period not exceeding three years. The NCTC is responsible for developing counterterrorism strategies; facilitating capacity building for counterterrorism stakeholders; conducting public awareness on prevention of terrorism; and analysing information and intelligence on terrorism and counterterrorism.

Freedom House has stated that in response to a growing extremist threat, especially from al-Shabaab, Kenya has adopted "a largely militaristic and security-focused approach against terrorism".