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As one of its first acts of the new year, Kenya’s High Court overturned eight provisions of a controversial security law designed to give the government sweeping powers to fight terrorism, particularly against the Somalia-based group al Shabaab. The decision has been hailed in Kenya as a great win for free speech and civil rights. Although the ruling was indeed a victory, it came in the middle of a troubling slide by President Uhuru Kenyatta’s government into increasingly draconian behavior.
Terrorism in Kenya is a real and deadly threat. As of September 2014, al Shabaab has killed at least 400 people and injured over 1,000 in more than 100 attacks since 2011. That year, after several al Shabaab raids into Kenya’s eastern region and then a dramatic kidnapping of several Kenyan aid workers, the country launched an operation in Somalia to clear out the militants and secure its eastern border.
Since then, al Shabaab has retaliated by brutally attacking Kenyan civilians. Some of the most outrageous assaults include the one on Westgate mall in Nairobi in September 2013 that left at least 67 dead. In November 2014, al Shabaab murdered 28 civilians on a bus traveling to Nairobi. Then, last month, the terrorist group executed 36 Kenyans—several of whom were beheaded—near the Somali border, an area so violent that non-Muslims have largely fled. Some Kenyans who previously fought for al Shabaab in Somalia are returning to Kenya to professionalize the group’s Kenya-based affiliate, al-Hijra, which has proved adept at radicalizing Kenyans, particularly from the Muslim-dominated coast. The group exploits Muslims’ anger over their marginalization by the primarily Christian Kenyatta administration, which has at times portrayed Kenya’s operation in Somalia as a struggle between Christianity and Islam.
Although the government is under intense pressure to restore order and protect its citizens, its heavy-handed tactics have left civil society worried that the quest for security will overturn the country’s hard-won freedoms. In 2013, parliament passed two laws, currently being challenged in court, that allow a government body to regulate the media. The partially suspended security law required journalists to obtain government permission to write about domestic terrorism and another law prohibited the dissemination of information that “undermines security operations.” A recent Al Jazeera exposé asserted that the Kenyan government had ordered police to execute suspected terrorist sympathizers. The report, which included interviews with anonymous security officials who claimed that they had been ordered to carry out the killings, angered the government. Instead of probing into the allegations, which it vehemently denied, the Kenyatta administration launched an investigation of the journalists who wrote the story. A ministry spokesperson also lashed out at the reporters, insinuating that they were sympathetic to terrorists and would “not be very welcome” should they return to Kenya.
A few days after the Al Jazeera report, Kenya de-registered more than 500 non-governmental organizations (NGOs) operating in the country for mistakes in their paperwork, and it claimed that 15 were supporting terrorism. Critics believe that the move was meant as retaliation against several of the NGOs, which had pushed the International Criminal Court to investigate Kenyan officials, including Kenyatta, for their role in supporting post-2008 election violence that left over 1000 dead. The ruling party has also proposed laws that would cripple a number of NGOs by severely restricting foreign funding—a similar bill had failed to pass in 2013. Both the security and NGO bills are reminiscent of those employed by other governments, including the regimes under Abdel Fattah al-Sisi in Egypt and Hailemariam Desalegn in Ethiopia, to curtail domestic freedoms in the guise of fighting terror.
Kenyan security forces also routinely violate Kenyans’ constitutional rights for the sake of security. Human rights groups have accused police of carrying out extrajudicial killings and disappearing dozens of Kenya’s citizens suspected of having ties to terrorism. After the bombings on March 31, 2014 of two restaurants in the Nairobi suburb of Eastleigh, nicknamed Little Mogadishu, that killed six and injured more than 20, security forces swept through the suburb and arrested thousands. During the operation, officials forcibly relocated some Somali refugees from Nairobi into camps in the north, despite an earlier High Court ruling against a similar campaign in 2012. Kenya’s Somali Muslim minority is often used as a scapegoat for government security failings.
Ultimately, Kenya’s fate lies in its own hands. But as a strategic partner in Kenya’s counterterrorism efforts, the United States should strive to make sure those efforts do not violate basic human rights. Since the 1998 al Qaeda attack on the U.S. embassy in Nairobi, the United States and Kenya have forged a close relationship when it comes to fighting terrorism. But their ties were further strengthened as it became clear that they had a common enemy: al Shabaab. The group was able to successfully recruit as many as 60 U.S. citizens using a sophisticated network that primarily targeted Somali Americans. As a result, the U.S. State Department routinely offers training to Kenya’s military and has sent millions of dollars’ worth of police and military aid—$41 million in 2014 alone.
Since Washington has given so much military and financial support to Kenya’s fight against terrorism, it has an avenue for influencing Kenyan counterterrorism policy. The United States has thus far limited its public criticism to statements of concern about the Kenyan government’s severe behavior. While such caution is warranted—Kenyatta delights in bolstering domestic support by painting Western actions as neoimperialistic—the United States needs to do more than offer military support and know-how. For example, Washington could make it a point to privately but urgently make the case to Kenyatta’s government that its actions are counterproductive—that targeting Muslims is breeding resentment, which terrorist groups then take advantage of to recruit new members.
The United States should also earmark aid for Kenya’s young and now wounded civil society sector. Kenya’s recent NGO bill would make this effort somewhat tricky, but aid can do more than just provide funds: Washington could invest in training for Kenyan journalists, for instance, or establish exchange programs that bring civil society leaders to the United States or, better yet, to other African countries such as Cape Verde, Mauritius, or Ghana that have relatively robust civil society sectors.
And finally, Washington needs to work with Kenya’s U.S.-trained Anti-Terrorism Police Unit (ATPU)—which is accused of perpetrating some of the worst human rights violations—to clean up its act. The U.S. military often forms strong bonds with its partners during training programs and should lobby the ATPU directly to make clear efforts to end abusive behavior. It can also make future trainings conditioned upon respecting human rights norms.
Although al Shabaab has killed hundreds of Kenyans, spread fear, and damaged the country’s economy, it has never had the military capability to conquer Kenya. Its greatest danger lies in provoking the country to betray its fundamental values. If, in its zeal to fight terror, Kenya loses its identity as a free society, it will suffer a defeat far worse than any al Shabaab could have inflicted upon it: it will come to resemble, in some ways, the very group that it seeks to defeat.