Constitutionalism and the Rule of Law: Evaluating Whether Due Process is applied in the Prosecution of Terror Suspects in Kenya (2012-2019)

The purpose of the study was to evaluate whether due process is applied in the prosecution of terror suspects in Kenya. Specific objectives included: to examine whether the counterterrorism laws, particularly provisions on the arrest of suspected terrorists follow due process as provided under the Constitution of Kenya, 2010; to evaluate whether counter-terrorism strategies are guided by due process rights and/or crime prevention principles of the criminal justice system; and to assess the impact of deviation of counterterrorism strategies from the due process on the social rights of suspected terrorists and their families in Kenya. The study adopted a constitutionalism theoretical framework liberal democracy theoretical foundation and the due process model of criminal justice to explain the phenomenon. The study site was Eastleigh North and Eastleigh South wards of Kamukunji Constituency, Nairobi County. This research adopted qualitative analytical approach. The research used key informants interviews to collect information from the key informants. The questionnaires were administered to the individual community members from the two wards of Eastleigh Area. In-depth interview was scheduled to collect qualitative information from third category of population. The study was based on descriptive statistics and mixed methods of data analysis The study established that most of the provisions of the counter-terrorism law such as the Prevention of Terrorism Act, 2012 (POTA) regarding the arrest of suspected terrorists were in line with the Constitution of Kenya, 2010. However, the study established that the Kenyan courts are sometimes fundamentally unfair under the law to accused terrors suspects. The study also revealed that the criminal justice system in Kenya focused more on the speed of concluding terrorism-related criminal cases than on the due process of determining whether a person is guilty or not guilty of terrorism. The study also established that sometimes the criminal justice system in Kenya does not protect the rights of the terror suspects. Notwithstanding, the study further revealed that police powers especially on the arrest provisions in the counter-terrorism laws were sweeping. Also, the study established that the right to equality and freedom from discrimination is usually denied to persons accused of terror acts. Furthermore, the study established that there were instances where respondents felt that they were held in indefinite detention and tortured. Nevertheless, the study suggested that there should be a balance between the three arms of the government: Executive, Judiciary and Legislative in counterterrorism measures. The balance between the branches of the government plays a vital role in securing the civil liberties of individuals accused of terrorism.