State has one week to answer Cord

The government has five days to file its defence to a petition by Cord seeking to suspend the controversial new security laws.

For the second time, Mr Justice Isaac Lenaola declined to issue temporary orders stopping the implementation of the anti-terror laws, insisting he must get a response from the government before granting any orders.

“It is obvious a ruling is required on whether to suspend new laws but a formal response from the government is also necessary before a decision is made. I therefore direct the respondents to burn the midnight oil and file their response before hearing on December 29,” ruled Justice Lenaola.

Failure to grant the conservatory orders makes the new law operational, with anyone intending to hold a public gathering now required to get the permission of the Cabinet Secretary in-charge of security.

Publishers too will have to get permission from the police before publishing pictures of a terrorism act or else they face court action and up to Sh5 million in fines.

The National Intelligence Service now has the powers to arrest Criminal suspects. Officials who help suspected terrorists enter Kenya will also be prosecuted. Director of Registration has also been granted the power to revoke an identification card.

A fierce legal battle is expected on Monday during the hearing after the Director of Public Prosecutions, Mr Keriako Tobiko, was enjoined as an interested party in the petition.

Mr Tobiko came to court in person seeking to be enjoined, unlike in other cases when he sends his deputies.

The government sent Solicitor-General Njee Muturi. Both Mr Tobiko and Mr Muturi objected to granting of interim orders, saying they required time to put up their responses.

“We will oppose granting of any conservatory orders at this stage. The petition is based on presumptions of unconstitutionality which has not been proved and need to be determined by at least a bench of three judges,” said Mr Tobiko.

Meanwhile, Justice Lenaola allowed consolidation of Cord’s petition with that of Kenya National Commission on Human Rights (KNCHR) on the basis they have raised the same issues.

Cord is unhappy with over 10 clauses in the Security Laws (Amendment Act) 2014 which it claims are unconstitutional. The coalition has cited the chaotic manner in which the laws were passed, lack of public participation and failure to involve the Senate in discussing the Bill as other grounds for the suspension.

PUBLIC PARTICIPATION

KNCHR argues that the Act lacked public participation. The commission also invalidates the laws due to what it terms as misconduct of the MPs during its passage as well as failure to involve the Senate.

The commission accuses the National Assembly of failing to facilitate meaningful engagement of the public before passing the law.

“The tight time lines given by the departmental Committee on Administration and National Security for making submissions combined with the difficulty in accessing the Bill, the length and complexity of the Bill limited participation which make it unconstitutional,” said KNCHR lawyer Demas Kiprono.

Mr Kiprono said the amendments made to the Act had far reaching consequences and should not have been brought through a miscellaneous amendment process.

KNHCR wants a declaration that the processes failed to meet the constitutional requirements.

Cord says the reasons given by the government for rushing the law through the National Assembly were misleading, fallacious and intended to cheat the public the law was to protect the country from terrorism.

“The amendments are not minor but extensive and intended to overhaul the structures and operations of the security organs, the objects and principles of Kenya criminal justice system and the application and compliance with the Bill of Rights,” said Cord’s lawyer James Orengo.

Cord alleges that strangers including officers from the office of the Serjeant-at-Arms, security officers and the Speaker voted on the Bill.