Lawyer James Orengo for Coalition for Reforms and Democracy (CORD) at Milimani law court when they filed suit against government over the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism.
BY SAM ALFAN.
Appellate court three-judge bench will determine on 23 January 12, 2015 an application challenging the suspension of eight clauses of the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism.
This is after Attorney General Githu Muigai asked the Court of Appeal to set aside High Court orders suspending eight clauses of the contentious Security Laws (Amendment) Act.
AG 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).
Attorney General Githu Muigai told three appellate judge bench comprising Justices Patrick Kiage, Agnes Murgor and Daniel Musinga,orders by Justice Odunga would affect the dispensation of Justice and that the Judge failed to consider the terrorist threat the country was facing and which the new law was meant to contain.
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.
“My Lords, we must remain focused–that is why the public have a healthy contempt of the courts, because when the village is burning, lawyers are busy arguing which bucket will be used to put water to put out the fire,” the Attorney General quipped.
AG urged the Court of Appeal to deal with the substance of the case as opposed to technicalities as presented by CORD.
His sentiments were reiterated by Paul Nyamodi representing the Commission for the Implementation of the Constitution who urged the other parties to consider the threat of terrorism and the damages it had and allow the law to take effect.
“Our Constitution is a versatile one which responds to situations as they demand–whereas terrorism is not a concept in our Constitution, the court should consider it a threat as it presents a situation where the victims are tortured—so terrorism can be simply defined as torture,” said Nyamodi.
In his response, Orengo had termed the appeal defective because it was filed out of time and served on them late in contravention of the law.
He also stated that the appeal was also improperly filed adding that the Attorney General had failed to demonstrate what prejudice the State would suffer if the suspension was upheld, and issue the AG later responded to.
In Orengo’s defence, Senior Counsel John Khaminwa urged the three judges to uphold the ruling by Judge Odunga saying the country did not need any additional law as the current was sufficient.
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.
“There is no vacuum, we do not need additional law, we can use the penal code and the criminal law– there is no state of emergency, the country is not under siege that notwithstanding the calamities, in Lamu, and Mandera,” he posed.
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.
Justice Odunga had in early January suspended eight clauses of the controversial Security Laws Amendment Act 2014 following petitions by the Coalition for Reforms and Democracy (Cord) and the Kenya National Commission on Human Rights (KNCHR).