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Nairobi Attacks: Kenya’s Anti-Terrorism Laws

Nairobi Attacks: Kenya’s Anti-Terrorism Laws

A terror attack against civilians was launched in Kenya by Al-Shabab on Saturday 21 September. The attack took place in Nairobi Westgate shopping mall and resulted in at least 61 deaths and 175 injuries.

The Nairobi Westgate Mall siege lasted for a duration of four days. Throughout this time, civilians were being held hostage and shots were being fired. It is baffling how the attackers managed to invade the shopping mall at such a busy time in the afternoon. In addition, the response time from Kenyan security forces was an hour. Considering the nature of the attack, the response was appalling.

The Somali militant group Al-Shabab were not shy in expressing that they were behind the terrorist attack./h4>

The Somali militant group Al-Shabab were not shy in expressing that they were behind the terrorist attack. Prior to the attack, they made it clear that the presence of Kenyan troops in Somalia weren’t welcome. It could be said that the attack was inevitable – it was just a case of whether Kenya’s anti-terror measures would be able to withstand the possibility of a terror attack.

There isn’t an official legal definition of the term ‘terrorism’ anywhere in the international legal arena. This makes it hard at times to distinguish between acts of liberation from an act of terrorism.

International Humanitarian Law deals with armed conflicts, but it doesn’t provide clear guidance on how states can deal with terror attacks. The nature of a terror attack involves conflict in nature, but there isn’t clarity on how to deal with terrorism. International Humanitarian Law only states that terrorism is prohibited. This means that the burden falls on individual states to implement their own anti-terror tactics and laws.

Luckily, Kenya has an anti-terror act which has been in force for a year: the Prevention of Terrorism Act 2012. It means that Kenya has a legal component to deal with the terror attack immediately. Although the act still doesn’t provide a definition of terrorism, it is better than nothing.

It does state, however, what is meant by the term ‘terrorist act’ under section 2:

“terrorist act” means 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) advancing a political, religious, ethnic, ideological or other cause; and
(ii) causing fear amongst the members of the public or a section of the public, or intimidating or compelling the Government or an international organization to do or refrain from doing any act;

The attack that was carried out at the shopping mall fits in with the criteria of what constitutes as a ‘terror attack’. For example: ‘it involved the use of firearms or explosives’ (section 2(a)(v)).

Furthermore, Al-Shabab expressly stated and broadcasted that the reason for the attack was because they wanted Kenya to withdraw their troops from Somalia. This constitutes ‘intimidating the government to refrain from doing an act’ under section (2)(b)(ii).

The Prevention of Terrorism Act 2012 also states the implications for terrorists. If a person commits an act of terror, they will face 30 years of imprisonment. In the case that the terror attack results in death, then this will result in a life sentence. In this case many deaths occurred as results of this attack, therefore, the captured attackers will no doubt face life in prison.

The act also extends to anybody who has not have been actively involved in the attack but, they ‘provide or make available’ property or service that results in the attack under section 5. If there are reasonable grounds for this, the result is a term of twenty years imprisonment.

It can be disputed whether individual state counter terrorism laws alone can withstand any future terrorist attacks that may occur.

It took ten years of deliberation and amendments before this anti-terror act became enforceable. The act has only been in force for a year and it seems that it couldn’t have come at a better time. The presence of the anti-terror act has not deterred Al-Shabab from attacking Kenya. However, on the upside, the act has meant that any captured attackers will be convicted. The fearlessness of Al-Shabab to carry out an act during a peak time shows that the act alone is not sufficient to deter any future terror attacks. It can be said that there needs to be more security measures and strategies to strengthen the act.

Following the attack on the shopping mall, Al-Shabab also attacked towns near Kenya’s border a few days later. As the attacks by Al-Shabab become more frequent, it is foreseeable that the Kenyan government will react.

If the Kenyan government decide to retaliate against Al-Shabab, the situation has the potential to transform into an armed conflict. The International Law Association’s Final Report on the meaning of Armed Conflict in International Law 2010 discussed what constitutes an armed conflict. It reported that a minimum of 30 hours was enough to classify a situation as an armed conflict. Therefore, there is potential for the situation to turn into an armed conflict. If that happens then it will be governed by International Humanitarian Law, but for the time being, only domestic law applies.

If the situation turns into an armed conflict, then the reprisals from both sides would be legal. Most importantly, it will place a legal obligation for the protection of innocent civilians. It will also mean that if it comes to a point where humanitarian aid is needed, it can be provided.

Africa is still the poorest and most underdeveloped continent. The frequency of terror attacks is only adding unneeded pressure in a place where the legal structures are mostly unstable. The continent has weak security barriers and therefore vulnerable to attacks. It can be disputed whether individual state counter terrorism laws alone can withstand any future terrorist attacks that may occur. After all, the attacks in Kenya have shown that domestic laws have not been enough to deter the attacks.

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