Many governments, in their quest to crush terrorism at any cost, have passed repressive legislation that has then been used to deny access to legal counsel, infringe privacy rights and severely curtail the freedom of movement, expression and association. In a number of instances, it has been minority groups, asylum seekers and refugees who have felt the full brunt of these laws. The result is increased global injustice, which ironically creates a fertile ground for terrorism to flourish.

But terrorism poses a major challenge and dilemma for all policy makers worldwide. To date, there has been no international consensus on the definition of the term "terrorism" and therein lies the biggest hurdle. It has been said that one person’s terrorist is another’s freedom fighter, hence the difficulty in reaching a consensus on the definition. 

The scope of any legislation targeting terrorism flows from the definition accorded to the term. In the absence of international guidelines, governments have full discretion to either accord the term a broad definition, which widens the scope for human rights abuse; or adopt a narrow one, limiting any legislation to a definition of the specific acts defined in international conventions.

 We can draw useful insight from the National Human Rights Commission in India, which in its opinion on the Prevention of Terrorism Bill 2000 summarized the way forward succinctly: "The correct remedy for speedy trial and punishment of crimes connected with terrorism – is proper strengthening of the crime investigation and prosecution machinery and criminal justice system.

If there are a large number of acquittals today, it is not for lack of any laws but for lack of proper utilization – lack of proper investigation and prosecution, and lack of adequate number of courts to try the offences. Unless this root problem is redressed, adopting draconian laws will only lead to their grave misuse–" 

This statement is particularly pertinent in Kenya’s case. Other commentators have highlighted the fact that our security and intelligence apparatus is hopelessly ineffectual and ill prepared to track down and apprehend terrorists before they attack.

Under the present circumstances, passing legislation on terrorism would be gratuitous and would only have the effect of increasing the already immense discretionary powers our police enjoy. It is inevitable that this act will be used to further marginalize minorities and vulnerable people.

 Kenya is faced with the challenge of coming up with counter-terrorism measures, which strike a balance between the need for national security and the protection of human rights. Kenyans must recognize that to successfully tackle this problem, we need to apply ourselves to addressing the root causes of terrorism. The government needs to adopt a multi-faceted approach to fighting terrorism. 

The United Nations also needs to commit itself to help us develop sound strategies that will enhance the capacity of our security forces to deal with terrorism without compromising the rights of citizens. Kenya is part of the international community and has obligations.

To fully meet her commitments under international law, Kenya will have to stand firm against any pressure to pass the Suppression of Terrorism Bill in its current form. In attempting to navigate the legal minefield of constructing anti-terror law, Kenya should first apply herself to determining the appropriate definition of "terrorism".

The Policy Working Group on the United Nations and Terrorism does not attempt a comprehensive definition of the term, but delineates some broad characteristics of the phenomenon, which can be used to guide legislators. They are, that terrorism is in most cases a political act; is meant to inflict dramatic and deadly injury on civilians and create an atmosphere of fear, generally for a political or ideological (whether secular or religious) purpose; and is a criminal act but more than mere criminality.

 Kenya has the option of passing legislation that narrowly defines terrorism and thereby limits acts of terrorism to those offences already described in existing conventions, like hijacking, hostage taking and money laundering. Provisions contained in existing laws can be reviewed and strengthened to target activities like trafficking and proliferation of small arms. Adopting a narrow definition offers the best option to tackle terrorism, without threatening human rights. 

If, however, the government insists on going for a broader definition, then at the bare minimum, it is vital that exclusion clauses are incorporated in the act to limit the impact of the definition. Canada and New Zealand, for example, have sought to modify the impact of a wide definition of terrorism by including specific exclusions in particular for protests, demonstrations, work stoppage and advocacy, provided they are not intended to endanger persons, cause harm or damage to property or pose a risk to public health and safety. 

Kenya catapulted herself into the global limelight when she went through a peaceful, democratic change of government. She is a beacon of hope in Africa. We do not have to behave like lemmings, and blindly follow the path laid by other countries in their war against terror. 

We have a chance here to face up to the challenges posed by terrorism, and demonstrate that terror does not have to be fought by means that undermine and render the inherent and non-negotiable rights of citizens impotent.

The writer is the Coordinator EA, with the Commonwealth Human Rights Initiative (CHRI)