Siaya Senator James Orengo and his Bugoma counterpart Moses Wetangula addressing the press outside Milimani law courts building in Nairobi after High court nullified several sections of the Security Laws Amendment Act
BY SAM ALFAN.
High court has nullified several sections of the Security Laws Amendment Act declaring them unconstitutional.
Presiding judge Justices Isaac Lenaola, Mumbi Ngugi, Hedwig Ong’udi, Hillary Chemitei and Louis Onguto annulled sections 12, 16, 20, 26, 34, 48 and 95 of the law.
Among the sections suspended were those giving power to the National Intelligence Service to carry out special operations on terrorism suspects and penalties for media houses for publishing materials deemed to either encourage or induce terrorist attacks..
If the judges find the law unconstitutional, they can declare it null and void or strike out sections that they interpret as violating the Constitution.
Eight clauses in the security laws had already been suspended by Justice George Odunga on January 2, when he heard the urgent application by the Coalition for Reforms and Democracy (Cord) and the Kenya National Commission on Human Rights (KNCHR).
Cord and KNCHR contested more than 20 clauses in the Act that they argued were unconstitutional.
They faulted the chaotic way in which the law was passed lack of public participation and failure to involve the Senate in discussing the Bill before it was passed.
President Uhuru Kenyatta on Friday signed into law the Security Laws (Amendment) Act 2014.
The law was passed in Parliament during a chaotic special sitting of the National Assembly.
In an address from State House soon after signing the law, the President said there is nothing in the new law that contradicts the Bill of Rights or the Constitution.
President Kenyatta said all concerns raised by different stakeholders were addressed through amendments.
He thanked the National Assembly for passing the Bill despite what he called the “deplorable conduct of a few individuals”, who he said were oblivious of the security threats facing the country.
He urged Kenyans to take time to read and understand the new law.He said new the law gives security actors a firm institutional framework for dealing with terrorism.
“This law gives our security actors a firm institutional framework for coherent cooperation and synergy within the national counter-terrorism centre.
The five judge bench on Friday last week postponed the judgement saying that they needed time to fine tune their decision over the weekend before making it public.
Justice Isaac Lenaola, Mumbi Ngugi, Hilary Chemitei, Hedwig Ongu’di and Louis Onguto told the parties in the suit, that the judgment is not ready.
The bench consequently extended the interim orders suspending the 8 clause as ordered by Justice George Odunga
The court is expected to determine issues raised by Coalition for Reform and Democracy (CORD) challenging the Security laws.
The governments through attorney general and the office of the director of public prosecution have maintained that the laws were properly passed by parliament.
During the hearing CORD through James Orengo submitted that the controversial security laws amendment bill was passed unprocedurally and without public participation.
Orengo told the bench presided by Judge Isaac Lenaola and Mumbi Ngugi, Hilary Chemitei, Hedwig Ongu’di and Louis Onguto heard that the Speaker of the National Assembly Justin Muturi was partisan in the chaotic debate that resulted in the passage of the bill last December.
“The speaker of the national assembly contravened the constitution by failing to refer the Bill to senate so as the two speakers could have made a determination as required by law,” said Orengo.
Orengo argued that public participation was restricted because the time allocated was inadequate and committee meetings were held at odd hours in contravention with the constitution.
“There was no debate in the House as witnessed by the public, the amendment bill was rushed and speeded without giving public participation,” Orengo added.
The Bill sought to amend several provisions of the public order Act (cap5), penal code, extradition,criminal procedure code, registration of persons, evidence, firearms rent restriction Acts among others undermine and violate the constitution.
The court heard the Bill contains several offensive provision namely Section 4,5,12,16,25,26,29,34,48,56,58 and 64 Security Law (Amendment)Act 2014 of the security thus it breached the constitution.
The five judge bench heard that the law passed contravened the constitution and the same cannot be presumed to be good law.
They heard that the amendment contains offensive provisions and affect lives of Kenyans if the same is allowed to come into operational.
The Bill sought to amend several provisions of the public order Act (cap5), penal code, extradition, criminal procedure code, registration of persons, evidence, firearms rent restriction Acts among others undermine and violate the constitution.
The court heard that the debate was rushed and hastened and the Bill was steamrolled and speed in the assembly thus violating the principle that the minority must have their say even if the majorities have their way because of the tyranny of numbers enjoyed by one side of the house.
Court of Appeal dismissed an application by AG seeking to stop the suspended and operation of eight sections of the anti-terrorism law.
The new regulation relating to arresting a person and withholding him or her for period of 90 days without explanation should not be applied.
The appellate court held that the was no vacuum in the constitution that would stop the government from enforcing the law in regard to the section suspended by Judge George Odunga.
Judge Odunga found that new regulation relating to limiting number of refugees to the county is discriminative in nature and inconsistence to international instruments and treaties to which Kenya is signatory.
the Judge upheld the position of United Nations Refugee Convention and Protocol that relates to protection and non-discrimination of refugees should be allowed to seek asylum without necessarily limiting their numbers as it in the case under new laws.
National Intelligence Services will not interfere with the privacy of individuals as proposed under the new Act, the court said this new amendment needs to be investigated and determination made.
The court further put on hold the anti-terrorism Act, saying the way in which the provisions are framed is too broad and imprecise and may be abused and recklessly applied beyond mischief as its expected.
According to Orengo the Bill 2014 was published in a special gazette supplement No 163 under the hand od Chairman on Administration and national Security Asman Kamama.
The Clerk of the National Assembly on December 10 published in the local dallies an advertisement intended to be an invitation to the public to present their memoranda on the proposed Bill.
“The notice was in violation of express provision of the constitution and in particular Article 10(2)(a) and 118(1) (b) of the constitution as it did not afford the people any meaningful opportunity to participate in the bill by giving a notice the same day the purported public participation was to commence” read the petition.
“Under Article 132(2)(a)(c) and (e) the head of state has an obligation and duty to respect, uphold and safeguard the constitution promote and enhance the unity of the nation and to ensure the protection of human rights and fundamental freedom and the rule of law.