process and crime control in criminal justice. 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 target population for the study was segmented into three major groups. The first category included counter

terrorism experts, police officers, officers from Independent Police Oversight Authority (IPOA), officers from Amnesty

International, officers from the Law Society of Kenya and officers from Kenya National Human Rights Commission. The

second category of the population included the residents of Eastleigh North and Eastleigh South wards of Kamukunji

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.

Over the past two decades since the 9/11 attack on the World Trade Center in the United States, terrorism has become a

priority for both domestic and global security. Terrorism has set off a paradigm shift in our society on how we interact, exist,

integrate, and trade globally. Generally, counter-terrorism approaches have been modelled based on deterrence, preventive, and

on respect for the rule of law is a viable and effective option in addressing terrorism. However, anti-terrorism measures in

Kenya have without a doubt been marred with challenges and criticism. Rights groups, both national and international have

accused the government of Kenya adopting counter-terrorism strategies that violate human rights and constitutional principles.

Previous studies on counter-terrorism have focused on issues such as torture, internment, indefinite detention, and rendition of

terror suspects. Other literature has reviewed issues of legal discourse in determining whether civil liberties have been

infringed upon to a dangerous extent. However, these relevant counter-terrorism studies have fallen short of highlighting

efficient due process models for combating terrorism to avoid denying terror suspects their due process rights during arrest and

detention in Kenya. There is no agreed consensus on a universal definition of terrorism. Different scholars have varied

1994). Consequently, the United Nations Security Council defined "terrorism" in Resolution 1566 (2004), to enable States to

meet their obligations under Security Council Resolution 1373 (2001). Thus, it stated that terrorism is:“a criminal act,

including against civilians, committed with intent to cause death or serious bodily injury, or taking of hostages, with the

purpose to provoke a state of terror in the general public or a group of persons or particular persons, intimidate a population or

compel a government or an international organization to do or to abstain from doing any act, which constitutes offenses within

the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances

justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls

upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with

their grave nature. (Para. 3) (United Nations Security Council, 2004).”

Historically, the first case of a terrorist attack in Kenya was in 1981 by the Popular Front for the Liberation of Palestine

at the hotel owned by some Israeli nationals. Consequently, on September 21, 2013, Al-Shabaab associates attacked the

Westgate Mall in Nairobi and killed at least 67 people in one of the worst terror attacks in Kenya. Moreover, in another

incident, between the 15 -17 June 2014 over 60 were killed in Mpeketoni, Lamu County by Al-Shabaab (Bryden & Bahra,

2019). On April 2, 2015, The Al-Shabaab terror group hit again. This time in an institution of higher learning - Garissa

University College and killed more than 150 people. This was the deadliest attack since the August 1998 United States

Embassy bombings. A recent attack occurred, on January 5, 2019, at the DusitD2 complex at Riverside in Nairobi. It was

reported that over 21 people were killed and several others injured in the attack that was later claimed by the Al-Shabaab (BBC

News Africa, 2019). The terror attacks in Kenya have happened as late as 2019 at DusitD2 complex, Riverside in Nairobi,

Kenya begging the question on the effectiveness of counter-terrorism specific laws passed in 2012 and 2014. The continued

attacks even with counter-terror laws in place casts a doubt on the counter-terrorism laws especially on the issue of due process

involvement in terrorism leads society down a slippery slope from which there is no return. The anti-terrorism measures in

Kenya have without a doubt been marred with challenges and criticism. The government has resulted in using heavy-handed

measures in their counterterrorism efforts. Thus, rights groups, both national and international have accused the government of

Kenya of adopting counter-terrorism strategies that violate human rights and constitutional principles. This is because the

government's criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons

convicted of a crime based on crime control model of criminal justice. Therefore, the proposed study intends to investigate the

efficacy of the due process model in countering terrorism in Kenya.

In the 1960s, legal scholar Herbert L. Packer created the due process model of criminal justice to describe exceeding

Many police cases of abuse could be prevented if the legislature did not insist on criminalizing such activities. The due process

model places much less emphasis on efficiency and guilty pleas taken in the court system (Packer, 1968). Furthermore, the due

process model is also concerned with equality in the sense that all accused regardless of wealth or social status should receive

accused from unfair self-incrimination (Packer, 1968, p. 203).

must address violations of their rights because those subject to police abuse will not as be required by the crime control model

be able to bring separate civil, disciplinary, or criminal actions against the police and prosecution (Packer, 1968, p.191).

Besides, the police and prosecutors are so concerned with short cuts that it is necessary within the trial to penalize, and label as

inefficient any violations of the accused's rights. Strong “prophylactic and deterrent exclusionary rules” are necessary because

police abuse will never reach the stage of a criminal trial. Notwithstanding, due to the presumption of innocence and the

harmful effects of pre-trial detention on the preparation of a defense, an accused should be detained awaiting trial only when

absolutely necessary to ensure attendance at trial (Roach, 1999). Also, alternatives to cash bail should be used because “a

system that makes pre-trial freedom conditional on financial ability is discriminatory. Neither the prosecutor nor the judge

should encourage guilty pleas by offering deals to an accused who pleads guilty. A criminal trial should be viewed not as an

undesirable burden but rather as the logical and proper culmination of the process. The criminal trial is concerned not with

making the Supreme Court the most important institution in the due process model because it defines the legal rights and

remedies of the accused (Roach, 1999, p.15). Nonetheless, due process in the context of terrorism in criminal proceedings

demands that the police should not arrest or detain terror suspects in order to develop their case. If there is any communication

between the police and the terror suspect, the accused should be carefully informed about the right to be silent and the right to

contact counsel. Any statements taken absent a clear and voluntary waiver by the terror suspect of his or her rights should be

excluded from a subsequent criminal trial in order to protect the accused from unfair self-incrimination (Packer, 1968, p. 203).

On paper, Kenya like any other State has affirmed its commitment to international treaties and conventions that deal with

counter-terrorism. Moreover, Kenya has been at the forefront of the African Union counter-terrorism agenda where it plays a

key role in security issues in the Horn of Africa. Moreover, Kenya has established its counter-terrorism strategies in the fight

abuses and silence government critics. Enacted anti-terrorism laws provide only a vague definition of terrorism, greatly

expanding police powers, and allows the state to create lists of suspected terrorists and terrorist organizations without due

process (Mazrui, 2018). For instance, in the aftermath of the 2015 al-Shabaab attack on Garissa University College, two civil

society organizations MUHURI and HAKI Africa had their bank accounts suspended after they were accused of funding

terrorism but the state was unable to prove the allegations in court. In a 2015 report, the Kenya National Commission on

From the onset, anti-terrorism measures have been seen to target individuals from a certain ethnic and religious affiliation.

Thus, the Somali communities who are predominantly Muslims have been targeted by counter-terrorism security agencies

whenever a terrorist attack occurs. For instance, between March and May 2014 under the security operation dubbed,Operation

Usalama Watch (Amnesty, 2014) members of the Somali community in Eastleigh and its environs were rounded up in the wee

Human Rights, Refugee Act Section 16 (2006), and Chapter IV, Bill of Rights in the Kenyan Constitution which guarantees the

fundamental rights and freedoms of all individuals in Kenya. (ICJ-Kenya & Justice Forum, 2015). Nonetheless, The

International Commission of Jurists, Kenyan Chapter wrote a report, African Charter on Human Rights and People’s Rights

against Somali Refugee and Asylum Seekers in The Republic of Kenya During “Operation Usalama Watch” stating that the

rights of the Somali foreign national were violated by the Kenyan government. The research report found that the Somali

nationals were mistreated in the detention and forcefully deported or taken to camps without consent (ICJ-Kenya & Justice

Forum, 2015).

According to Elfversson and Höglund (2019, p.358), Kenya’s Anti-Terrorism Police Unit (ATPU) has been abusing human

rights and violating international, regional, and domestic laws when combating terrorism. The ATPU has used excessive force

when raiding houses of people suspected of terrorism, torturing them, and in the process of mistreating detainees whenever in

(Open Society Justice Initiative, 2013). Consequently, the Open Society Justice Initiative has accused the government of

rendition of terror suspects to other countries. The rendition of terror suspects is unconstitutional because they infringe on the

Bill of Rights and Citizenship right under the Constitution of Kenya, 2010. For instance, on July 11, 2010 revelers in two

locales watching the 2010 World Cup final match were bombed by the militant group Al-Shabaab. After investigations, nine

suspects from Kenya were held accountable for the bombings and were captured and rendered to Uganda to face terror charges.

This was unlawful as authorities did not follow proper extradition rules of suspects to other countries. Also, the rendition of

terror suspects in Kenya has been done to jurisdictions in Somalia and the United States where suspects have faced torture and

Procedure Code (Cap. 75 of the Laws of Kenya), and the Bail and Bond Policy Guidelines, 2015. Moreover, Article 49(1)(h) of

of Kenya (2010) has constituted the right to bail of an arrested person, the anti-terrorism laws sought to deny bail to terror

suspects because citizens would not feel safe if suspected terrorists were released from custody. Kantai (2017) supported the

arguments made by Pinto (2016) where he reiterated that the bond and bail guidelines had failed to clarify matters on bail for

suspected terrorists. This compelled the Judiciary to further interpret and define compelling reasons leading to inconsistencies

in the manner in which bail is granted. Furthermore, the release of some suspected terrorists on bail by the Courts in Kenya

was against the security of the state as some who were released had gone to commit further acts of terrorism.

Omondi (2015) on the issue of balancing bail and state security in Kenya stated that there should be a clear understanding of

terrorism and terrorism act before an individual is considered a terror suspect. Also, the executive, legislature, and judiciary

should play an important role in ensuring that the fundamental rights and freedom enshrined in the Constitution of Kenya are

guaranteed to individuals who are suspected of terror activities. Furthermore, there should be a balance in legislation between

the right to bail and the state of security in Kenya. Thus, the author argued that the executive and legislature have established

and implemented laws that are outside the constitutional framework. Therefore, it is up to the judiciary to ensure that the rule

of law and the fundamental rights in the Kenyan constitution 2010 were observed. Notwithstanding, every right of terror

consistent with article 2(1) and (4) of the Constitution of Kenya 2010. Meaning, "the constitution is the supreme law of the

Republic and binds all persons in all state organs at both levels of government and that any law including customary law that is

inconsistent with the CoK is void to the extent of the inconsistency and any act or omission in contravention of this

the researcher does not know inductively what to expect. This design is beneficial for terrorism and counterterrorism analysis

because of its exploratory approach. Nonetheless, the research was guided by a case study approach. The use of case studies

helps explore the phenomenon in context by making use of the varied information sources for an in-depth analysis.

Consequently, the approach evaluated the outcomes of the use of Kenya’s counterterrorism approach and its legal implications

if any. Employing a case study design helped give certifiable information in the Kenyan context.

category of the population are people who are knowledgeable and have relevant experience concerning counter-terrorism

strategies and laws. The second category of the population included the residents of Eastleigh North and Eastleigh Southwards

of Kamukunji Constituency, Nairobi County. The category dealt with issues concerning the residents of Eastleigh. The third

category of the population was specifically residents of Eastleigh North and Eastleigh South of Nairobi County who had either

been directly accused of being a terror suspect or witnessed a relative, a friend, or a person close to them accused of being a

terror suspect. Concerning the first segment of the population comprising counter-terrorism experts, police officers, officers

from Amnesty International, officers from Independent Police Oversight Authority (IPOA), officers from Law Society of

Kenya (LSK) and officers from Kenya National Human Rights Commission (KNHRC), the researcher adopted purposive

sampling to select participants in the study. In purposive sampling, a researcher has the research objectives to be achieved and

the prospective participants have the required information needed to achieve research objectives (Etikan, Musa, & Alkassim,

Sub County were segmented into five wards. Thereafter, two wards, Eastleigh North and Eastleigh South wards were singled

out as the target population. The population living in the two wards according to the last census report was 163,462 people

(KNBS, 2019). Consequently, the study used simple random sampling to pick respondents to participate in the study. The

respondents were adults who were above 18 years of age and possessed any form of Identification documents recognized by

the Kenyan government. The sample size was determined by the formulae suggested by Kothari (2012, p.77) to determine the

sample size for the residents of Eastleigh North and Eastleigh South wards to participate in the study. Nonetheless, on the third

category of the population, snowball sampling was adopted to first identify a few residents who have in the past been directly

accused of being a terror suspect or witnessed a relative, a friend, or a person close to them accused of being a terror suspect.

The first respondents identified linked the researcher to other would-be respondents possessing the same characteristics. The

researcher intended to collect information from at least ten respondents who had been a victim of the court criminal justice

system or related to someone who underwent the criminal justice system in a terrorism case.

counterterrorism experts and human rights defenders. An interview guide comprising of open-ended questions was

administered by the researcher. The key informant interview was administered conversationally with questions that do not limit

the interviewee and focuses the conversations in the desired path regarding research objectives. This allowed a degree of

freedom and adaptability in getting the information from the interviewee. The disadvantage with this is that it is subject to

for further analysis. Besides, the data collection happened during the COVID-19 pandemic limiting direct interaction with

people. However, the researcher observed the guidelines outlined by the Ministry of Health (MoH) and wore protective mask,

sanitizers and observed social distancing with the respondents and among respondents who filled the questionnaires as advised.

The study adopted an in-depth interview schedule to collect qualitative information from residents who have in the past been

directly accused of being a terror suspect or witnessed a relative, a friend, or a person close to them accused of being a terror

suspect. The researcher intended to collect information from at least ten respondents possessing the above qualities. The

respondents were subjected to questions already formulated before the interview (Kombo and Tromp, 2013, p.55). The

interview schedule had open-ended questions to record the respondents’ views and additional experiences. Nonetheless, the

researcher noted the information given by writing down the points during the interview. The researcher also used a voice

recorder to capture the deep experiences of the respondents who narrated of the time they were either accused or watched

thoughts, experiences and perceptions regarding counter-terrorism measures and the due process model. This further presented

in verbatim to help put a human face to the respondents’ views and experiences. Content analysis enabled the researcher to

draw out themes that are necessary to help answer the research questions. The analyzed data was presented based on major

themes around research objectives.”

for issuance of research permit by the National Commision for Science, Technology and Innovation (NACOSTI). Thus,

NACOSTI granted the researcher permission to conduct research in Kenya. Another key ethical issue was in the area of

voluntary participation of the respondents. The researcher obtained informed consent from the participants before commencing

graphs from the internet and the library were for the sole purpose of reviewing the study and not to claim ownership of the

material used. Thus, the researcher recognized the sources of information used through properly citing the authors of the works.

nor falsify the participants’ information to suit the researcher’s opinion or preempted outcome.”

The researcher printed and administered 96 questionnaires to residents of Eastleigh North and Eastleigh South Wards of

Kamukunji Constituenc, Nairobi County. Out of the 96 questionnaires administered, 77 questionnaires were filled and returned

to the researcher. The return rate was 80.2% and therefore adequate for further analysis as held by Mugenda and Mugenda

regards to the in-depth interview, the researcher was able to collect information from ten (10) respondents who have either

been a victim of the court criminal justice system or related to someone who underwent the criminal justice system in a

terrorism case in Kenya. To begin with, the study sought to establish the demographic information of the respondents who

participated in the study. The demographic information included gender, religion, age and education. The distribution of the

respondents in terms of gender was based on males and females. Therefore, there were 47 (49.6%) females and 48 (50.4%)

males who participated in the study. The females were well marched against the males in the study with the males having a

slight majority. Secondly, the demographic of religion was recorded in the study. It was categorized into Christians, Muslims

and others. Majority of the respondents were Muslims comprising of 58 (61.0%) respondents, Christians were a distant third

comprising of 15(15.7%) of the respondents and lastly, 22(23.3%) of the respondents belonged to other religions and beliefs.

Nevertheless, the findings showed that most of the respondents from the Eastleigh North and Eastleigh South Wards were

majority of the respondents, 66 (69.4%) of the respondents held a secondary, tertiary and degree level of education. This was

followed by 18(18.9%) of the respondents who only had secondary or primary education level. Lastly, those that possessed

either postgraduate or PhD qualification were 11(11.5%).

The study sought to investigate the counter-terrorism legislation and strategies and their relationship to the principles of due

process and crime control in criminal justice. The objective was first examined based on information collected using a

questionnaire. The respondents were presented with several statements regarding due process in the handling of terrors cases

and were required to rate based on the Likert scale.