Senior counsel James Orengo for Coalition for Reforms and Democracy (CORD) at Supreme Court where the Appellate court declined to reinstate the eight suspended clauses on the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism.
BY SAM ALFAN.
Government has suffered a major blow after the Appellate court declined to reinstate eight suspended clauses of the controversial Security Laws.
Appellate judges Daniel Musinga, Patrick Kiage and Agnes Murgor ruled on Friday that Attorney-General Githu Muigai had not proved that the suspension of the clauses had created a vacuum in fighting terrorism.
“We decline to grant the orders sought by the applicant and dismiss the application dated 6th January, 2015. We make no order as to costs.” Said the judges.
Attorney General Prof. Githu Muigai had appealed against suspension of the clauses claiming Justice George Odunga had erred in his judgment to suspend the laws.
“Whether by granting the conservatory orders the learned judge of the High Court erred in law and in fact in his interpretation of Article 23 of the Constitution” said Prof. Githu in his appeal.The case will now be heard by a five judge bench that was constituted by the chief justice.
In the appeal that had been filed by the attorney general, the court heard that high court judge George Odunga erred in law when he issued orders staying the implementation of the eight security bill clauses.
The AG had claimed that that the judge failed to consider the terrorist threats the country was facing and which the new law was meant to address.
However in its ruling the appellate court led by Judge Daniel Musinga said there was no vacuum in law and therefore dismissed the appeal by the Ag.Court of appeal ruled that the appeal by the AG had no merit.
Among the issues that were raised before the court was whether Judge George Odunga erred in law and if he had the jurisdiction to suspend the clauses as a single judge among others. The court suspended clauses 12, 16, 26, 29, 48, 56, 58 and 64 pending hearing of the case filed by the Coalition for Reforms and Democracy and human rights lobbyists.
Justice George Odunga ruled that sections of the new Act raised questions of human rights violations.
Attorney General Githu Muigai challenged the suspension of eight clauses of the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism..
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).
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 asserted 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.
Todys ruling has left the fate of the tough controversial security bill under the hands of five judge bench appointed by chief justice Willy Mutunga to hear the petition filed by Coalition for Reform and Democracy (CORD) challenging Security laws (amendment) Act 2014 in the next 12 days.
Presiding Judge Isaac Lenaola said the matter will be heard on January 28, 29 and 30.
The bench consists presiding judge Isaac Lenaola,Mumbi Ngugi, Hilary Chemitei, Hedwig Ongu’di and Louis Onguto.
The bench should be able to deliver the judgment on or before February 13, 2015.