Balancing competing interests: a study on Kenya’s: ability to reconcile national security with the right to privacy

Abstract

This study investigates whether Kenya can maintain the balance between upholding national security and protecting the right to privacy in effecting counter terrorism measures. It examines the implementation of local and international counter terrorism legislation in the domestic jurisdiction. Furthermore, it analyses the extent of derogation from the right to privacy as provided by Article 4 of the ICCPR. In addition, it carries out a comparative study between Ghana; a state that has managed to maintain its national security whilst respecting the right to privacy, and Ethiopia, a state that has countered terrorism through wanton violations of the right to privacy. Best practices are drawn from England. The study concludes by providing viable recommendations on the various issues raised.The central theme of this study investigates whether Kenya can sustain the balance between maintaining national security while respecting the right to privacy in this era of counter terrorism. In attempting to answer this question, a plethora of related questions emerge: How flexible are human rights norms when it comes to extreme threats to national security like terrorism? Do Kenya’s geopolitics warrant a greater margin of appreciation in favour of security? Do the security measures employed meet the aim for which they are intended, that is to prevent, reduce or completely eradicate terrorism? The study recognises the proclivity of terrorism to pit the right to privacy against national security. With the evolution of terrorism from significant suicide bombings to now include mass causality shootings, states have adopted measures to counter the crime. Steps towards making national security paramount have taken centre stage and dominated the on-going conversation on dealing with terrorism. Nonetheless, these steps have been highly criticised by various human rights advocates and labelled as anathemas to civil liberties such as the right to privacy. Reconciling the notion of upholding liberties with preserving national security has proven to be one of the greatest challenges of modern times. This study, therefore examines whether this reconciliation can be achieved in Kenya.