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International law framework for the protection of the right to privacy
The right to privacy is a fundamental entitlement which is protected by Article 12 of the UDHR.258 The right to privacy is also protected by Article 17 of the ICCPR and applies to all individuals without distinction.259 No individual may be subjected to unlawful interference of his/her privacy including the privacy of his/her home, property, correspondence and reputation. The HRC adopted General Comment No. 16260 in 1988 which elaborates on the protection of the right to privacy under Article 17 of the ICCPR. The Committee noted that Article 17 places an obligation upon states to refrain from unlawful and arbitrary interference of the right to privacy.261 It must be noted that the African Charter does not provide for the right to privacy. However, the Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa require that searches on the person and home must be provided for by law.262 Such searches arerestricted to collection of relevant evidence and must be conducted with dignity and without harassment.263 However, this has not been the case with Kenyan and Ugandan counterterrorism police who have in several instances raided homes and work premises.264 Some of these raids have been conducted in the middle of the night during which the residents are intimidated or even beaten up by law enforcement. This conduct is definitely unlawful and is inconsistent with the principles of international law that require searches to be done in a manner that maintains the dignity of the persons being searched.
In 2009, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Schenin submitted a report elaborating on the protection of the right to privacy during counterterrorism.265 The Special Rapporteur re-stated the international law position that the right to privacy is not an absolute protection but may be subject to certain lawful limitations.266 The test for the legitimacy of restrictions on the right to privacy requires that such limitations must be provided for by law; the law must be accessible; it must not completely erode the right to privacy; the limitation must be necessary in a democratic society; discretion when implementing the restriction must not be unfettered; the limitation must be necessary; limitation measures must be proportional, appropriate and least intrusive; and the limitation must be consistent with other rights.267 In order for states comply with these requirements, the Special Rapporteur recommended the following measures: national law must recognize international standards on privacy and other rights;268 there must be independent oversight mechanisms over surveillance mechanisms;269 privacy impact assessments must be carried out for all counterterrorism policies;270 safeguardsmust be developed to govern inter-state information sharing;271 regulations must be developed to limit government access to information held by third parties;272 counterterrorism legislation language must be restrictive for that purpose;273 governments should motivate their policies to show how surveillance is proportional and necessary;274 watch lists must include due process safeguards;275 and privacy enhancing research must be promoted.276
Kenya and Uganda’s counterterrorism police units function with minimum accountability277 dominated by cover-ups of wrongdoing to the detriment of the victims.278 Most of the unreasonable infringement on the right to privacy has manifested in unauthorized searches of individuals, property and correspondence as noted above.
The right to privacy under Kenyan and Ugandan law
The constitutions of Kenya and Uganda both recognise the right to privacy of the person, home and other property.279 These provisions prohibit the unlawful search of the person, home or property, and the unlawful seizure of property, information relating to their family or private affairs, and communication.280 However, the right to privacy may be limited provided such limitations are demonstrably justifiable in a free and democratic society.281 The Anti-Terrorism Act of Uganda provides for the powers of investigation282 and security officers.283 An investigation officer can only conduct a search after obtaining a warrant from a magistrate whodetermines whether the material sought to be seized is not designated by law as privileged information.284 In principle, the officer’s powers are limited to the conditions set out in the warrant. This creates a balance between protecting privacy and countering terrorism. The powers of an investigation officer are relatively limited compared to a security officer. A security officer is appointed by the Minister from the Ugandan Army, Police Force, or Security Organization285 and has the power to conduct surveillance; searches; intercept communication including letters, parcels, phone calls, faxes and emails;286 monitor electronic activities; and access banking information.287
In addition, a security officer may further carry out any other necessary action during a terrorist investigation under Section 19(6). The open-ended language of this provision confers unfettered discretion upon a security officer which opens up the possibility of unlawful erosion of the right and abuse of power. There is always need for oversight by an independent body for example a court over counterterrorism measures such as surveillance.288 In some states, parliament or some other independent body is charged with the mandate of reviewing the necessity and lawfulness of surveillance methods carried out during counterterrorism operations.289
CHAPTER ONE Introduction to the thesis
1.1 Background
1.2 Statement of the problem
1.3 Research objectives
1.4 Research questions
1.4.1 Sub-questions 15
1.6 Significance of the study
1.7 Methodology
1.8 Limitation of study
1.9 Literature review
1.10 Scope of the study
CHAPTER TWO Theoretical framework on counterterrorism
2.1 Introduction
2.2 The theory of good law
2.3 Separation of powers
2.4 Constitutionalism and the rule of law
2.5 Democracy
2.6 Theories of policing
2.6.1 Broken windows policing
2.6.2 Problem oriented policin
2.6.3 Community policing theo
2.6.4 Democratic policing theory
2.7 Conclusion
CHAPTER THREE Terrorism in Kenya and Uganda
3.2 The problem of indigenous terrorist organizations
3.2.1 Uganda’s indigenous terrorist organizations
3.2.2 Kenya’s indigenous terrorist organizations
3.3 The rise of al-Shabaab in Somalia and beyond
3.4 The challenge of cross-border terrorism in Kenya and Uganda
3.5 Improved relations with the West on counterterrorism
3.6 Kenya and Uganda’s counterterrorism police agencies.
3.6.1 Uganda’s counterterrorism police and Joint Anti-Terrorism Taskforce (JATT) .
3.6.2 Kenya’s Anti-Terrorism Police Unit (ATPU)
3.7 Kenya and Uganda’s legislative intervention
3.7.1 Terrorist organizations under Kenya and Uganda’s laws
3.7.2 Suppression of terrorism financing under Kenya and Uganda’s laws .
3.7.3 Extradition of terrorist suspects between Kenya, Uganda and Tanzania
3.8 Conclusion
CHAPTER FOUR International and regional counterterrorism frameworks and their implications for Kenya and Uganda
4.1 Introduction
4.2 Implications of the UN Global Counter-Terrorism Strategy for East Africa
4.3.1 African counterterrorism framework before the OAU terrorism convention
4.3.2 OAU Convention on the Prevention and Combating of Terrorism .
4.3.4 The African Commission on Human and Peoples’ Rights
4.4 Implementing international and regional frameworks in East Africa
4.4.1 The East African Community (EAC)
4.4.2 Intergovernmental Authority on Development (IGAD)
4.4.3 East African Police Chiefs Cooperation Organization (EAPCCO) .
4.5 Conclusion
CHAPTER FIVE . Life, non-discrimination, opinion, religion and privacy
CHAPTER SIX Liberty, personal security and the rights of detainees
CHAPTER SEVEN Accountability for law enforcement breaches of human rights during counterterrorism .
CHAPTER EIGHT Conclusion and recommendations
BIBLIOGRAPHY
