EXPLAINER: From victims to suspects: How anti-terror laws have been applied unevenly

DCI anti-terrorism unit/DCI

Khadija Adam was on her regular visit to Westgate Mall, Nairobi, on September 21, 2013, when the calm air was disturbed by a chilling sound of gunshots.

“PAH! There were three shots… I had never heard such gunshots,” she told The New Yorker.

Everyone was scrambling for cover; police and civilians alike.

Later, survivors of the Westgate attack would describe the experience as traumatic and chaotic.

In interviews with various news agencies, shoppers recalled the sound of grenades, gunfire and people screaming in fear.

One survivor told BBC, “I saw people running and screaming. Then I saw blood. So much blood.”

That was the day the world watched in horror asAl-Shabaab militants stormed Nairobi’s upscale mall, killing 67 people and injuring more than 200, in one of the country’s deadliest terror attacks.

For four days, the attackers and security forces battled out, with the attack becoming a gloomy reminder of the August 1998 US Embassy bombing.

The militants would later confess they targeted Kenya in response to the deployment of the military to Somalia to counter a rising insurgency that saw a number of tourists abducted.

It wasn’t just an attack on civilians. It was a turning point. The moment the country’s anti-terror laws began to shift, with ripple effects that still shape lives today.

Westgate: The charges and court proceedings

In what would result in imprisonment for the convicts, 46 prosecution witnesses testified before a Milimani Law Court.

In June 2024, the High Court in Milimani upheld the conviction and sentencing of Mohamed Ahmed Abdi and Hussein Hassan Mustafa.

Lady Justice Grace Nzioka ruled that the evidence presented by the prosecution, as analysed by the trial court, was sufficient to support the charges against them.

The two were convicted of conspiracy to commit a terrorist act, with Abdi additionally charged with being in possession of an article connected to a terrorism offence.

However, the High Court acquitted them of the charge of providing support to a terrorist group.

“Following the testimony of 46 prosecution witnesses, the trial court sentenced the two to 18 years each for the offense of conspiracy to commit a terrorist act, and Abdi to 15 years for the offense of being in possession of an article connected with terrorism,” stated the Office of the Director of Public Prosecutions (ODPP).

Lady Justice Nzioka upheld the sentence and the trial court’s order that the sentences run consecutively.

Garissa: A generation lost

Barely two years later, on April 2, 2015, the Garissa University College massacre shook the nation again. 148 students, most of them under 24, were gunned down after being separated by religion. 79 were injured.

A survivor, Stephen Mwangi, narrated how while hiding in a wardrobe with other students, he saw his sister being rounded up alongside others by the terrorists.

The attack began at 5:30 am when masked gunmen affiliated with Al-Shabaab accessed the institution, approximately 200 km from the Somalia border.

The attackers began by shooting two unarmed guards at the gate before storming the hostels, detonating a blast that created a crater and triggering mass panic.

They forced over 700 students to lie face down and systematically separated Muslims (who were released) from Christians (who were shot).

Among the deceased were students, police and soldiers. Many others escaped or were rescued during the siege, which lasted nearly the entire day.

It ended when four attackers were killed, one by detonation of his suicide vest.

After Garissa, counter-terror efforts went deeper.

Military intelligence was deployed domestically. The National Counter Terrorism Centre (NCTC) was restructured.

Special police units mushroomed, often with wide discretion to detain, surveil and question.

Five men were later arrested in connection with the attack.

The Garissa University attack court case

In March 2023, the High Court lowered the prison sentences for two defendants who were convicted in the Garissa University terror attack. High Court Justice Cecilia Githua acquitted Hassan Edin Hassan and Mohamed Abdi Abikar of the crime of being members of the al-Shabab militant group.

The judge said the prosecution did not present evidence to prove the two terror convicts were members of the militia group.

She, however, upheld the convictions of conspiracy to commit a terrorist act. Their prison sentences were lowered from 41 years to 25-and-a-half years.

“Their actions of aiding and abetting terrorists who carried out the actual cowardly and premeditated acts which caused much suffering to families of deceased persons and still traumatise the survivors who bear the scars for the rest of their lives, cannot be forgiven,” the judge said.

In 2019, a lower court had sentenced them to 25-and-a-half years for conspiracy to commission and commit a terrorist act and 15-and-a-half years for being members of Al-Shabaab.

Tanzanian national Rashid Charles Mberesero was suspected of having been among the gunmen.

How laws hardened after Westgate

The country’s legal framework on terrorism is primarily governed by the Prevention of Terrorism Act (POTA), No 30 of 2012, along with supporting regulations and constitutional safeguards.

Under Sections 2 and 4 of POTA, a terrorist act includes the use or threat of action causing death or serious injury, serious damage to property, risk to health or safety of the public, and disruption of essential services.

This is usually done with the intention to intimidate the public, coerce a government, and, advance a political, religious, or ideological cause.

It is important to note that an act is not terrorism if it only involves peaceful protest or advocacy without the intention of causing harm.

POTA outlines the various offences and penalties, which spa from 20 years to life imprisonment.

Again, there is emphasis in noting that even in terrorism cases, the constitution guarantees right to a fair trial, right to be informed of charges, right to legal representation and right to bail, although courts may deny bail for serious offences like terrorism.

POTA is supported by The Prevention of Organised Crimes Act (2009), which targets criminal gangs and networks that may also engage in terror-like activities.

Although not exclusively a counterterrorism law, POCA is used to disrupt networks that may also finance or support terror operations. Examples are Al-Shabab cells and Mungiki.

The Security Laws (Amendment) Act (2014) amended parts of POTA to give more powers to security agencies and The Proceeds of Crime and Anti-Money Laundering Act is used to trace and block terrorism financing.

The Security Laws allowed extended detention of terrorism suspects (up to 90 days with court approval), gave expanded powers to NIS for surveillance and arrest and introduced new offences like publishing material that could incite terror.

Criticism of the law

Multiple reports by Amnesty International Kenya, the Kenya National Commission on Human Rights (KNCHR) and Human Rights Watch (HRW) have documented misuse of the counterterrorism laws, particularly the POTA.

In 2014, a joint report by Amnesty and HRW titled “Kenya: Killings, Disappearances by Anti-Terror Police” documented how:

“Counterterrorism operations have led to the enforced disappearances and extrajudicial killings of dozens of people, mostly Muslim men in Nairobi, Mombasa, and the North Eastern region.”

In its report “The Error of Fighting Terror with Terror”, KNCHR documented over 120 cases of extrajudicial killings, enforced disappearances, and arbitrary detention between 2013 and 2015.

KNCHR (July 2023–Nov 2024) documented 1,376 arbitrary arrests and 74 over 120 cases of extrajudicial killings, enforced disappearances, and arbitrary detention between 2013 and 2015. KNCHR (July 2023–Nov 2024) documented 1,376 arbitrary arrests and 74 enforced disappearances.

During the June 2024 “#RejectFinanceBill” protests, Amnesty International reported 21 abductions and disappearances, alongside 52 arrests, confirming use of forceful tactics by uniformed and non‑uniformed officers.

HRW (June 2025 report) describes abductions and enforced disappearances of leaders and participants of protest actions, with bullets and beatings used against protestors, including minors, and no investigations or prosecutions of security personnel responsible.

Boniface Mwangi: The activist who saw it coming and a U-turn in charges

On July 19, 2025, the arrest of activist Boniface Mwangi by officers from the Directorate of Criminal Investigations (DCI) at his home in Lukenya, Machakos County, sparked public outrage.

He was taken to Pangani Police Station for processing and on Monday arraigned in Kahawa Law Courts.

According to police, officers recovered two unused tear gas canisters, a blank 7.62mm round, laptops, mobile phones, hard drives and documents from his residence and office.

While initial statements from authorities hinted at possible terrorism-related charges, Mwangi was ultimately charged under the Firearms Act for unlawful possession of ammunition and tear gas canisters — not terrorism.

“On 19th July, 2025, at Mageuzi Hub, in Nairobi County within the Republic of Kenya, you were found in possession of noxious substances to wit three Teargas canisters without lawful authority….you were found in possession of one round of a 7.62 x51mm blank ammunition without lawful authority,” the charge sheet reads.

Mwangi maintained his innocence. Principal Magistrate Gideon Kiage ordered his bail release at Sh1 million.

KHRC condemned the move, calling the charges “trumped-up” and accusing the state of weaponising anti-terror rhetoric to justify politically motivated actions.

Amnesty International Kenya also issued a strong statement, describing the arrest as part of a “broader effort to intimidate lawful dissent,” and pointing to the misuse of the Prevention of Terrorism Act (POTA) in over 100 protest-related cases — a trend they warned was eroding the integrity of Kenya’s criminal justice system and violating international legal obligations.