Nairobi, 26 March 2014

We as civil society condemn the terror attacks in the country and most recently in Likoni where 6 innocent lives were lost. We offer our condolences to the family and friends of those who were killed and our prayers for a quick recovery of the injured.

Terrorism poses a threat to us all. We as civil society support all legitimate efforts by security agencies to find the perpetrators of these heinous attacks, bring them to book and to forestall and prevent further atrocities.

However, to be effective, it is important that such efforts are undertaken with due regard for the rights of the innocent, as protected by the constitution, and without wholesale victimisation of entire communities.

Today’s reported declaration by Mombasa County Commissioner Nelson Marwa of a shoot-to-kill order on all terrorism suspects is therefore most disturbing and must be condemned by all. It is unacceptable in modern society for the Commissioner to seek to impose on regular policemen and security agents the responsibility and authority of the judge and the executioner, under the guise of fighting terrorism. That is not only illegal, but also undermines legitimate efforts to find perpetrators and to engage communities in preventing attacks.

The rights enshrined by the constitution exist to protect all Kenyans. The presumption of innocence and the entire judicial process is meant to ensure that no Kenyan can be deprived of these rights on the basis of mere suspicion. Circumventing these processes does not make society safer. On the contrary, it makes us less safe, endangering the lives of each and every Kenyan.

The fact is, most Kenyans arrested on suspicion of terrorism-related offences are eventually found to be innocent. In the recent raid on Masjid Musa, for example, the vast majority of the 130 people arrested were subsequently released. If Commissioner Marwa had his way, all of them would now be lying dead. Similarly, out of 59 suspects arrested over the Likoni attacks, 49 who have been cleared of any involvement would have been executed by the state anyway under the pretext of protecting us from terrorists.

This is not how democratic states fight terrorism. Respect for fundamental rights is not a barrier to effective action against terrorists. On the contrary, it is to protect fundamental rights that the constitution establishes security organs. Just as we cannot uphold the rule of law by disregarding it, we must acknowledge that we cannot protect the lives Kenyans by suspending the mechanisms that exist to protect us all from the undiscriminating bullet.

We urgently call on President Uhuru Kenyatta, CS Joseph Ole Lenku and IGP David Kimaiyo to declare that the order given by Commissioner Marwa has no basis in law and to instruct security agencies to disregard it.

We further call on Commissioner Marwa to resign, or in the alternative, for him to be immediately relieved of duty. He should be investigated with a view to prosecution for inciting the killing of innocent Kenyans and for the suspension of constitutional rights.

Finally, we reiterate our support for legitimate efforts to combat terrorism and crime. We call for long-term engagement with local communities to address the root causes of marginalization and radicalization.

Signed

__________________
Al-Amin Kimathi
Co-Convenor,
Civil Society Working Group on Counter-terrorism and Human Rights (TETEA)