In August 2020, ARTICLE 19 analysed the Republic of Kenya’s Official Secrets Act of 1970, revised in 2012, as well as a proposed amendment in 2020 (the Official Secrets Act or the Act). Historically, ARTICLE 19 has expressed profound concern regarding the scope of the Act, and takes this opportunity to reiterate its concerns surrounding the Act’s fundamental compatibility with Kenya’s obligations to protect freedom of expression and information under international human rights law.
Further, ARTICLE 19 is greatly concerned that the expansion of the Official Secrets Act to modern technologies, including any telecommunications apparatus, grants far-reaching warrantless search powers of digital communications which have serious implications for rights to access information as well as privacy. This proposed amendment has already faced significant criticism for its grave implications for the personal freedoms of citizens and journalists in Kenya, particularly those who “rub the government the wrong way”.
ARTICLE 19 notes that while protection of national security can be a genuine and legitimate interest for restricting freedom of expression, the Official Secrets Act and its proposed amendment as a whole fail to provide an adequate balance between the public’s right to freedom of expression and information and national security interests. In particular:
- The Act carries a potentially limitless scope. Its key provisions punish a wide range of seemingly ordinary conduct engaged in routinely by journalists, government officials, and members of the public. As such, it seriously threatens the free conduct of investigative journalism and could, inter alia, punish journalists who passively receive information. No exceptions at all are made if the underlying documents or information expose wrongdoing or abuses by the government.
- The 2020 draft Amendment provides sweeping warrantless police powers to the Cabinet Secretary, a non judicial official, to compel Internet and telecommunications platforms to provide data on communications and user information. These powers can have a chilling effect on the ability of individuals and media to engage in free speech. Because there is presently no judicial oversight, the standard for search is highly subjective and potentially limitless. It is also unclear how these provisions may interact with the ability of individuals to use encryption to protect anonymity of communications.
- Many key provisions of the Act lack of clarity of key terms related to national security; they are broadly defined to an extent that does not provide legal clarity as to prohibited conduct.
- The Act does not require a proof of substantial harm caused by disclosure. Thus, it is entirely conceivable under the framework of the Official Secrets Act that individuals can face severe criminal sanctions and prison time for disclosures that cause no harm at all.
- The Act does not require evidence of actual harm caused by disclosure or communication. Hence, individuals can face severe criminal sanctions and prison time for disclosures that cause little or no harm at all.
- No public interest defence is available. The Act fails to provide a safeguard of an affirmative defence to prosecution where an individual can present evidence that their disclosures benefited the public good. All restrictions on expression on grounds of national security, whether criminal or civil, should be subject to a public interest defence so sanctions only attach where damage to national security clearly outweighs any public interest value in disclosure. Section 16 provides reference to ‘excuse’, but this does not establish a sufficient public interest defence.
- Sanctions are disproportionate and severe. Criminal penalties range up to fourteen years in prison, which are decidedly severe given the lack of intentionality and harm requirements or the availability of any public interest defence. Any legal sanctions, particularly criminal, should not be so severe as to have a disproportionate effect on freedom of expression and information, and should account for any potential chilling effects.
- No protections are offered for confidential sources and information. The framework of the Act, specifically the newly proposed amendments, could be used to gather information on journalistic sources without judicial oversight. The protection of sources is an integral part of the protection and promotion of the right of freedom of expression.
- Section 3 of the Act should be repealed in its entirety. Its provisions are exceedingly broad, relate to a seemingly limitless degree of conduct, and are fundamentally incompatible with Kenya’s obligations to promote freedom of expression.
- Section 5 should be stricken as written, or if a prohibition on obstruction of activities is included it should clearly and narrowly define what is meant by “interference” with police officers, to ensure that no legitimate expressive activity is included.
- Section 6, as amended, which grants wide warrantless search and surveillance powers of digital content and communications, should be stricken in its entirety. Searches must be subject to independent judicial review and require cause.
- Definitions of key terms which may be used to curtail freedom of expression must be narrowly and precisely defined to comply with international freedom of expression standards.
- Civilian law enforcement should not be included in the framework of national security and should hence be stricken from any definitions of “munitions” or “prohibited spaces”.
- The Act should not include references to sedition or “subversive activities” as such concepts typically fail the requirements on permissible restrictions to freedom of expression under international standards.
- Any definition of foreign agency should be narrowly and precisely crafted as to not risk the possibility of labelling individuals are foreign agents for political purposes. As such, the language regarding one “reasonably suspected” to be a foreign agent should be stricken, as should be the ability of one to be a foreign agent merely for acting “in the interests of a foreign power”.
- Section 7 should be stricken in its entirety, as it interferes with the freedom of association with others under Article 22 of the International Covenant on Civil and Political Rights.
- Section 12 should either be stricken or amended to explicitly provide greater safeguards for the public’s right to access judicial proceedings and challenge determinations of secrecy.
- Sections 13 through 15, which create various presumptions of intent (i.e. guilt) based on alleged conduct alone, are antithetical to fundamental due process standards, particularly in the context of a national security law, and should be stricken in their entirety.