As someone who has participated in various forums aimed at seeking alternative approaches in the war against terrorism, I regret to point out that summary

execution of suspected terrorists without giving them the opportunity to be heard is not helping matters at all. From my experience, I believe that if security agents are capable of conducting operations that would capture suspected terrorists alive, they should use the vast skills they possess to extract valuable information from them, if any. Coldblood executions are not only unlawful, but they also serve to enrage and encourage more and more youths to join extremist groups especially when it turns out that the person executed was innocent. I hold this view because of the most recent incident in Mombasa in which police commandos raided a house in Bondeni area and shot dead 26-year-old Idris Mohammed. Mombasa County Commander Robert Kitur said officers acting on intelligence information raided their house where the suspect was killed while his accomplice managed to escape. “We had some intelligence information that there are criminals and part of them is a group terrorising people here in Mombasa. We believe they were two but we only found one and we are looking for the other one who escaped,” Kitur told journalists.

But such narrative coming from police four years since Kenya promulgated a new constitution is as shocking as it is unacceptable. Unacceptable because, as much as terrorism continues to pose a serious threat to national security, there is nothing in it to justify violation of the constitution! Article 50 of the Constitution of Kenya 2010 protects the right to a fair hearing. The right to fair hearing is listed under Article 25 as one of the fundamental freedoms and rights that, notwithstanding provisions of Article 24, cannot be limited in any way. Article 24 provides exceptions under which a right or fundamental freedom in the Bill of Rights can be limited. Hence, between Article 24 and 25, we gather that the right to fair hearing is so fundamental that nothing can warrant its limitation. I spoke to a lawyer friend of mine who told me that fair hearing is one of the principles of natural justice established under the law of equity. The principle of natural justice has two limbs, namely audi alteram partem and nemo judex in causa sua. The first is a Latin phrase that means “hear the other side too”, or “hear the alternative party too”. It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. In a nutshell, audi alteram partem means that “no man shall be condemned unheard”, and effectively justifies the principle of presumption of
innocence.

On the other hand, nemo judex in causa sua is the Latin phrase that literally means, no-one should be a judge in his own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none—hence the maxim “justice must not only be done, but must be seen to be done.” I have addressed myself to these two
principles because rule of law is the only thing that differentiates between civilised and uncivilized society. Terrorists are uncivilized and that is why they engage in barbaric activities like killing and maiming innocent women, children and the elderly. But governments are supposed to be civilized and that is why their actions are guided by the law. However, when police engage in barbaric and unlawful execution of suspects without giving them the opportunity to be heard, then there is no difference between them and the terrorists. When terrorism became a security menace, Kenyans, including Muslims, supported the enactment of the Prevention of Terrorism Act, hoping that it would be used as the civilized way of responding to the challenges posed by this menace. However, it appears that the police are not interested in the civilised way of dealing with terrorism and have
instead chosen the barbaric approach. I can only urge the police to get back to civilization and start dealing with the threat of terrorism within the confines of the law.

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