Attorney General Githu Muigai who has filed an appeal against the suspension of eight clauses of the controversial Security Laws Amendment Act 2014.
BY SAM ALFAN.
Attorney General Githu Muigai has challenged the suspension of eight clauses of the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism..
AG has filed a notice appeal against the January 2 decision by High Court Judge George Odunga following petitions by the Coalition for Reforms and Democracy (Cord) and the Kenya National Commission on Human Rights (KNCHR).
In his application, the Attorney General argues the high court does not have power to suspend legislation that has been lawfully sanctioned by the National Assembly and assented to by the President without justifiable reasons. The law can only invalidated by a three-Judge constitutional bench appointed by the Chief Justice upon receiving valid grounds regarding the short-comings or excesses of the law, he said.
President Uhuru Kenyatta signed into law the controversial legislation on December 19 following unprecedented mayhem in the House. Parliament enjoys exclusive power to enact laws that are presumed to be lawful and the High Court can only intervene when there is evidence of interference with freedoms and liberties protected by the Constitution, Prof. Githu says.
The Attorney General claimed the new law does not violate the fundamental rights and freedoms enshrined in the Bill of Rights but opposition groups have condemned the tough regulations, among which allow security agents to hold suspects without charge for up to 90 days.
Earlier in December, while responding to an application filed by the two petitioners, the AG said the law has given security personnel the ability to counter terror activities and if it is shelved, it will mean Kenyans will be left at the mercy of the perpetrators.
The AG defended the Security Laws arguing that the court cannot grant temporary orders as this
would jeopardize the fight against terror insurgents.
The CORD fraternity is seeking orders to stop the implementation of the security laws that President Uhuru signed into law and have since been published in the Kenya Gazette.
“The Security Laws (Amendment) Bill 2014 was not referred to the Speaker of the Senate by the Speaker of the National Assembly after it was passed by the National Assembly,” Orengo told the court.
He castigated the Speaker of National Assembly Justin Muturi for not referring the laws to the senate.
“The Speakers lost control of the proceedings in the House and acted in a partisan and bias manner and there was no decorum and dignity in the National Assembly and freedom of speech and debate,” judge Lenaola was told.
Orengo told court that the speaker violated the law by forwarding the laws for assenting by the president, before the senate could deliberate on them.
“Serve and come for inter-parties hearing tomorrow at 11.30 in the morning. The applicant will not suffer any prejudice if the stay orders are not granted immediately,” Judge Lenaola said.
Senior Counsel Orengo argued that the government was keen in returning the county to a one party state through the new security laws. “The laws were passed in a chaotic environment coupled with violation of the standing orders,” he said.
In the turn of events, the efforts of the application seeking orders before government is served were thwarted, after the judge noted that there was no enough demonstration to issue such a request.
The CORD fraternity argues that the President of the Republic of Kenya had acted in a manner that does not respect, uphold and safeguard the Constitution of Kenya.
“The president has an obligation to promote and enhance the unity of the nation; and to ensure the protection of human rights and fundamental freedoms and the rule of law,” read part of the suit.
The applicants also said that public participation was restricted because the time allocated was inadequate and committee meetings were held at odd times in contravention of Article 118 of the Constitution of Kenya.
CORD wants the court to make a finding that the Security Laws (Amendment) Bill 2014 as passed and assented to and the Security Laws (Amendment) Act contravene the Constitution of Kenya and violate the Bill of Rights and are both, each and all therefore null and void.
The court has been asked to make a determination that the conduct of the National Assembly in unilaterally considering and passing the Security Laws (Amendment) Bill without involving the Senate undermines the architecture and legal structure and framework of the legislature.
The case has outlined a number of grey areas including section 5 of the Security Laws (Amendment) Act 2014 and Section 9 of the Public Order Act which CORD says are inconsistent with and contravenes Articles 238 and 239 of the Constitution of Kenya.
The coalition hold s that a Cabinet Secretary is not a member of any of the national security organs and therefore would not be obligated to comply with the principles of national security organs .
Also, the court has been invited to see that the provisions contained in Section 66A (2) of the Penal Code are oppressive and are inconsistent with and contravenes Articles 28 and 29 of the Constitution.
According to the applicants, the penal code now allows for the trial, punishment and conviction of a person who had no knowledge of ongoing investigations or security operations of the National Police Service or the Kenya Defence Forces.
They said that Section 25 of the Security Laws (Amendment) Act and Section 18A of the Registration of Persons Act are inconsistent with and contravene Articles 12, 14 and 24 of the Constitution and to the extent that it is not reasonable and justifiable for a person who is a Kenyan citizen by birth to be denied a passport or other document of registration
The appellate court will hear the appeal of the attorney general and give further direction on the matter.