Restore security clauses, says AG
What you need to know:
- He said the matter should have been left to Chief Justice Willy Mutunga to appoint a bench to interrogate whether the new law was unconstitutional.
- Mr Orengo submitted that the appeal by the AG was incompetent and dismissed claims that suspending the law would make the country vulnerable to terrorist acts.
- Lawyer Victor Kamau submitted that the High Court did not invalidate the law, but only suspended sections that could be used by the government to abuse human rights.
Attorney-General Githu Muigai has asked the Court of Appeal to quash orders suspending eight clauses of the new security law.
Prof Muigai told a three-judge bench that High Court Judge George Odunga had no jurisdiction to suspend part of the Security Laws (Amendment Act) 2014.
He said the matter should have been left to Chief Justice Willy Mutunga to appoint a bench to interrogate whether the new law was unconstitutional.
“The judge acted in excess of his powers by putting the cart before the horse. His role was only to inquire if the petition raised substantial questions of law and referred it to the CJ to constitute a bench to determine its legality,” Prof Muigai said.
The judge did not act in public interest since the balance of convenience would have made him allow the implementation of the new law instead of suspending some parts of it.
DEFENDED SUSPENSION
However, the Coalition for Reforms and Democracy (Cord) lawyer, Mr James Orengo, defended the decision to suspend the eight clauses.
He said Cord’s petition at the High Court had raised sufficient grounds of possible human rights abuses to warrant the orders.
Mr Orengo submitted that the appeal by the AG was incompetent and dismissed claims that suspending the law would make the country vulnerable to terrorist acts.
“There is no vacuum in law. There are laws, which have been used to protect citizens and fight terrorism. The judge considered everything and was satisfied the orders are necessary to save the public,” said Orengo.
Director of Public Prosecutions Keriako Tobiko supported the AG’s submission to have the suspended clauses reinstated in the law. The DPP argued that the judge contradicted himself by appreciating the danger of terrorism, but at the same time suspending the laws aimed at fighting it.
NOTHING WRONG
“Preventing the State from implementing a statute is injurious to the public. There is nothing wrong with police holding a suspect for a maximum of 180 days with the authority of the High Court,” Mr Tobiko said.
The Kenya National Commission on Human Rights also opposed the AG and the DPP’s arguments, saying that it was in the interest of the public to have the clauses suspended to avoid compensation claims in the future, should the law be finally declared unconstitutional.
Lawyer Victor Kamau submitted that the High Court did not invalidate the law, but only suspended sections that could be used by the government to abuse human rights.
Lawyer John Khaminwa, representing Kituo Cha Sheria, accused the government of hiding their laxity in fighting insecurity by enacting laws, which were unconstitutional. The country, he added, was not in a state of emergency to warrant the lifting of the orders suspending the eight clauses.
Appellate Judges Daniel Musinga, Patrick Kiage and Agnes Murgor will on January 23 give a ruling on the whether or not to reinstate the eight clauses in contention.
