People arrested in connection with suspected terrorism offences could have stronger protection against secret detention under proposed changes to Kenya’s security laws, with police required to account for an arrest from the point of apprehension to a suspect’s appearance in court.
Nominated MP Umulkher Harun Mohamed has asked the National Assembly to amend the Security Laws (Amendment) Act, 2014, to introduce clearer rules on the arrest, detention and court production of terrorism suspects.
The proposal would require every person arrested on suspicion of a terrorism-related offence to be produced before a court within 24 hours, in line with Article 49 of the Constitution.
“Every person arrested on suspicion of a terrorism-related offence be produced before a court within twenty-four hours of arrest, in accordance with Article 49 of the Constitution.”
Mohamed, who is Vice Chair of the Constitutional Implementation Oversight Committee, also wants arresting officers to immediately record their names and identification numbers, the date, time and precise location of the arrest, the reason for the arrest, the facility where the suspect is taken and the registration number of the vehicle used.
The proposed changes would require arrested people to be informed of the reason for their arrest and their constitutional rights, including access to an advocate and the right to communicate with a family member or another person of their choice.
A family member or another person designated by the arrested person would have to be informed of the arrest and place of detention within six hours.
The proposal also seeks to regulate the use of police vehicles during terrorism-related arrests. As a general rule, Mohamed wants such arrests to be carried out using clearly identifiable National Police Service vehicles.
Unmarked vehicles could still be used where they are considered necessary for intelligence or operational purposes. However, their use would require prior approval from a senior police officer, with the vehicle’s registration number, the officers involved and the circumstances requiring its use entered into official police records.
“Where an unmarked vehicle is considered necessary for an intellizence-led or operational purpose, its use shall be subject to prior authorisation by a senior police officer and the vehicle's registration number, the officers involved and the circumstances necessitating its use shall be recorded in the official police record.”
Mohamed further proposes that terrorism suspects should not be held in undisclosed or unofficial places.
The National Police Service would be required to maintain a central record of every person arrested under the law. The record would include the place of detention and the date and time the person is taken to court or released.
Police officers who fail to follow the proposed safeguards could face disciplinary action and, where applicable, criminal or civil liability under Kenyan law.
Mohamed says the changes are intended to strengthen accountability without limiting legitimate counter-terrorism operations.
The proposal is based mainly on Articles 49, 29, 27, 50 and 238 of the Constitution, which cover the rights of arrested persons, freedom and security of the person, equality and freedom from discrimination, fair hearing and principles governing national security.
“Counter-terrorism requires effective intelligence gathering, investigation and prosecution. However, effectiveness in combating terrorism should not depend upon removing basic safeguards surrounding arrest and detention.”
“A transparent arrest system serves both the individual and the State.”
According to the proposal, a transparent arrest system would protect individuals from unlawful detention and abuse while also giving police an auditable record of their operations.
The document says identifying officers and vehicles would help establish who carried out an arrest, when and where it happened, where the suspect was taken and when the person was presented before court.
The proposed amendment also seeks to address cases involving unidentified officers, unmarked vehicles and undisclosed detention locations.
“The amendment further seeks to address circumstances in which an individual may be arrested by persons whose identities are unclear, transported in unidentified vehicles, held at an undisclosed location or remain in detention without their family knowing their whereabouts.”
Mohamed says the safeguards are particularly relevant to terrorism investigations, where the State may require broad investigative powers but those powers should remain subject to constitutional oversight.
The proposal does not seek to prevent security agencies from investigating terrorism offences or seeking judicial orders for continued lawful custody.
Instead, it places the prevention of undisclosed detention and disappearance of suspects at the centre of the proposed changes.
“No person should disappear simply because they have been accused of terrorism. An arrest must create a record, a family must know where their relative is being held. and a court must see the suspect within the constitutionally prescribed period.”
If adopted, the amendments would reinforce the constitutional 24-hour rule, require families to be promptly informed when a person is arrested and reduce the possibility of suspects being held outside judicial oversight.
They would also create a clear record of counter-terrorism arrests, including the officers involved, vehicles used, detention locations and the time suspects are taken to court or released.