The eight clauses of the Security Law Suspended By The High Court


The High court has temporarily suspended eight clauses in the security law amendment bill 2014 that was signed and passed into law by president Uhuru Kenyatta in December 2014.

The controversial clauses which have been suspended are as follows:

12. The Penal Code is amended by inserting the following new section immediately after section 66

Prohibited publications and broadcasts.
66A. (1) A person who publishes, broadcasts or causes to be published or distributed, through print, digital or electronic means, insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both.
(2) A person who publishes or broadcasts any information which undermines investigations or security operations by the National Police Service or the Kenya Defence Forces commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or a imprisonment for a term not exceeding three years, or both.
(3) The freedom of expression and the freedom of the media
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under Articles 33 and 34 of the Constitution shall be limited as specified under this section for the purposes of limiting the publication or distribution of material likely to cause public alarm, incitement to violence or disturb public peace.

16. The Criminal Procedure Code is amended by inserting the following new sections immediately after 42 –
Disclosure by prosecution.
42A. (1) Pursuant to Article 50(2)(j) of the Constitution, the prosecution shall inform the accused person in advance of the evidence that the prosecution intends to rely on and ensure that the accused person has reasonable access to that evidence.
(2) In proceedings under the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act and the Counter-Trafficking in Persons Act, the prosecution may, with leave of court, not disclose certain evidence on which it intends to rely until immediately before the hearing—
(a) if the evidence may facilitate the commission of other offences;
(b) if it is not in the public interest to disclose such evidence;
(c) where there are grounds to believe that disclosing such
The Security Laws (Amendment) Act, 2014
evidence might lead to an attempt being improperly made to persuade a witness to make a statement retracting his original statement, not to appear in court or otherwise to intimidate him.
(3) Evidence shall be deemed to be in the public interest, if that evidence —
(a) touches on matters of national security;
(b) touches on the identity of an informant where there are good reasons for believing that disclosure of the informant’s identity may place the family of the informant in danger;
(c) discloses the identity of a witness who might be in danger of assault or intimidation if his identity is known;
(d) contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that the
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person was a suspect;
(e) discloses some unusual form of surveillance or method of detecting crime.
(4) Disclosure of evidence to the Court and the accused person under this section shall be done in camera.
Insertion of section 118A of Cap. 75.
26. The Evidence Act is amended by inserting the following new section immediately after section 20 —
The Security Laws (Amendment) Act, 2014
Proof of written statement by consent.
20A. (1) If the person who makes a statement cannot read it, the statement shall be read to him by an officer of or above the rank of a Chief Inspector or a magistrate before he signs it, and an endorsement shall be made thereof by the person who so read the statement to the effect that it was so read. (2) A copy of the statement, together with a copy of any document referred to in the statement as an exhibit, or with such information as may be necessary in order to enable the party on whom it is served to inspect such document or a copy thereof, shall, before the date on which the document is to be tendered in evidence, be served on each of the other parties to the proceedings, and any such party may, at least two days before the commencement of the proceedings, object to the statement being tendered in evidence under this section. (3) If a party objects under subsection (2) that the statement in question be tendered in evidence, the statement shall not, but subject to the provisions of subsection (4), be admissible as evidence under this section.
(4) If a party does not object under subsection (2)or if the parties agree before or during the proceedings in question that the statement may be so tendered in evidence, the statement may,
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upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings. (5) When the documents referred to in subsection (3) are served on an accused person, the documents shall be accompanied by a written notification in which the accused person is informed that the statement in question shall be tendered in evidence at his trial in lieu of the State calling as a witness the person who made the statement, but that such statement shall not without the consent of the accused person be so tendered in evidence if he notifies the prosecutor concerned, at least two days before the commencement of the proceedings, that he objects to the statement so being tendered in evidence. (6) The parties to criminal proceedings may, before or during such proceedings, agree that any written statement referred to in subsections (1) which has not been served in terms of subsection (2) be tendered in evidence at such proceedings, whereupon such statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings. (7) Notwithstanding that a written statement made by any person may be admissible as evidence under this section—
(a) a party by whom or on
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whose behalf a copy of the statement was served, may call such person to give oral evidence; (b) the court may, of its own motion, and shall, upon the application of any party to the proceedings in question, cause the person giving oral evidence to be summoned before the court, or the court may, where the person concerned is resident outside the court’s jurisdiction, issue summons to be effected through the diplomatic channel. (8) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section, shall be treated as if it had been produced as an exhibit and identified in court by the person who made the statement.
(9) Any person who makes a statement which is admitted as evidence under this section and who in such statement willfully and falsely states anything which, if sworn, would have amounted to the offence of perjury, shall be deemed to have committed the offence of perjury and shall,
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upon conviction, be liable to the punishment prescribed therefor.

29. The Evidence Act is amended by inserting the following new section immediately after section 59—
Agreement on facts not in issue
.
59A. (1) If an accused person has appointed an advocate and, at any stage during the proceedings, it appears to a prosecutor that a particular fact or facts which must be proved in a charge against an accused person is or are not in issue or shall not be placed in issue in criminal proceedings against the accused person, the prosecutor may, forward or hand a notice to the accused person and his advocate setting out that fact or those facts and stating that such fact or facts shall be deemed to have been proved at the proceedings unless notice is given that any such fact shall be placed in issue.
(2) The notice by the prosecutor under subsection (1) shall be sent by registered mail or handed to the accused and his advocate personally at least fourteen days before the commencement of the criminal
The Security Laws (Amendment) Act, 2014
proceedings or the date set for the continuation of such proceedings, or within such shorter period as may be approved by the court or agreed upon by the accused person or his advocate and the prosecutor. (3) If any fact mentioned in the notice under subsection (2) is intended to be placed in issue at the proceedings, the accused person and his advocate shall at least five days before the commencement or the date set for the continuation of the proceedings, or within such shorter period as may be approved by the court or agreed upon with the prosecutor, deliver a notice in writing to that effect to the registrar or the clerk of the court, as the case may be, or orally notify the registrar or the clerk of the court to that effect, in which case the registrar or the clerk of the court shall record such notice. (4) If, after receipt of the notice from the prosecutor under subsection (1), any fact mentioned in that notice is not placed in issue as under subsection (3), the court may deem such fact or facts, subject to subsections (5) and (6), to have been sufficiently proved at the proceedings concerned.
(5) If a notice was
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forwarded or handed over by a prosecutor under subsection (1), the prosecutor shall notify the court at the commencement of the proceedings of such fact and of the response thereto, if any, and the court shall thereupon institute an investigation into those facts which are not disputed and enquire from the accused person whether he confirms the information given by the prosecutor, and whether he understands his rights and the implications of the procedure and where the advocate of the accused person replies to any question by the court under this section, the accused person shall be required by the court to declare whether he confirms such reply or not. (6) The court may on its own motion or at the request of the accused person order oral evidence to be adduced regarding any fact contemplated in subsection (4).
Insertion of section 63A in Cap. 80.

48. The Refugees Act is amended by inserting the following new section immediately.
Permitted number of refugees and asylum seekers in Kenya.

16A. (1) The number of refugees and asylum seekers permitted to stay in Kenya shall not exceed one hundred and fifty thousand persons. (2) The National Assembly may vary the number of refugees or asylum seekers permitted to be in Kenya. (3) Where the National Assembly varies the number of refugees or asylum seekers in Kenya, such a variation shall be applicable for a period not exceeding six months only. (4) The National Assembly may review the period of variation for a further six months.
56. The National Intelligence Service Act is amended by repealing Part V and substituting therefor with the following new Part—
PART V–SPECIAL OPERATIONS
Authority to undertake covert operations.
42. (1) In this Part ―special operations‖ means measures, efforts and activities aimed at neutralizing threats against national security. (2) Where the Director-General has reasonable grounds to believe that a covert operation is necessary to enable the Service to investigate or deal with any threat to national security or to perform any of its functions, the Director-General may, subject to guidelines approved by the Council, issue written authorization to an officer of the Service to undertake such operation.
(3) The written
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authorization issued by the Director-General under subsection (2)—
(a) shall be sufficient authorization to conduct the operation;
(b) may be served on any person so required to assist the Service or facilitate the covert operation or investigations required to be undertaken;
(c) may authorize any member of the Service to obtain any information, material, record, document or thing and for that purpose—
(i) enter any place or obtain access to anything;
(ii) search for or remove or return, examine, take extracts from, make copies of or record in any manner the information, material, record, documents or thing;
(iii) monitor communication;
(iv) install, maintain or remove anything; or
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(v) take all necessary action, within the law, to preserve national security; and
(d) shall be specific and accompanied by a warrant from the High Court in the case of paragraph (c), and shall be valid for a period of one hundred and eighty days unless otherwise extended.
Amendment of section 65 of No. 28 of 2012.
58. Section 65 of the National Intelligence Service Act is amended by deleting the word ―Parliament and substituting therefore the words ―National Assembly.
Insertion of section 30A in No. 30 of 2012.
64. The Prevention of Terrorism Act is amended by inserting the following new sections immediately after section 30—

The Security Laws (Amendment) Act, 2014
Publication of offending material.
30A. (1) A person who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years. (2) For purposes of subsection (1), a statement is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism if— (a) the circumstances and manner of the publications are such that it can reasonably be inferred that it was so intended; or (b) the intention is apparent from the contents of the statement. (3) For purposes of this section, it is irrelevant whether any person is in fact encouraged or induced to commit or prepare to commit an act of terrorism.
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Training or instruction for purposes of terrorism.
30B. (1) A person who knowingly—
(a) attends training or receives instructions at any place, whether in Kenya or outside Kenya; or
(b) receives instruction or training on the use or handling of weapons,
that is wholly or partly intended for purposes connected with the commission or preparation for the commission of terrorist acts, commits an offence and is liable on conviction to imprisonment for a term not less than ten years. (2) For purposes of subsection (1), it is irrelevant whether—
(a) the person in fact receives the training; or
(b) the instruction is provided for particular acts of terrorism.
Presumption of travelling to a country for purposes of being trained as a terrorist.
30C. (1) A person who travels to a country designated by the Cabinet Secretary to be a terrorist training country without passing through designated
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immigration entry or exit points shall be presumed to have travelled to that country to receive training in terrorism. (2) Despite subsection (1), a person who ordinarily resides in Kenya within an area bordering a designated country is exempt from the provisions of subsection (1). (3) For the purposes of this section, the Cabinet Secretary may, through regulations, designate any country to be a terrorist training country.
Foreign terrorist fighters.
30D. A person who is not a Kenyan citizen who enters or passes through Kenya for purposes of engaging in terrorist activities in Kenya or elsewhere commits an offence and shall on conviction, be liable to imprisonment for a term not exceeding thirty years.
Aiding and abetting.
30E. A person who aids or abets the commission of an offence under this Act commits an offence and
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shall be liable on conviction to a term of imprisonment for a term not exceeding twenty years.
Prohibition from broadcasting.
30F. (1) Any person who, without authorization from the National Police Service, broadcasts any information which undermines investigations or security operations relating to terrorism commits an offence and is liable on conviction to a term of imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings, or both. (2) A person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a period not exceed three years or to a fine of five million shillings, or both.
The Security Laws (Amendment) Act, 2014
(3) Notwithstanding subsection (2) any person may publish or broadcast factual information of a general nature to the public.

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