Security laws illegal, declares High Court

Monday February 23 2015

Kenya's President Uhuru Kenyatta signs the Security Laws (Amendment) Bill at State House, Nairobi, on December 19, 2014. Looking on is Deputy President William Ruto (right) and Speaker of the National Assembly Justin Muturi. Eight offensive clauses in the controversial Act have been declared unconstitutional. FILE PHOTO | PSCU

Kenya's President Uhuru Kenyatta signs the Security Laws (Amendment) Bill at State House, Nairobi, on December 19, 2014. Looking on is Deputy President William Ruto (right) and Speaker of the National Assembly Justin Muturi. Eight offensive clauses in the controversial Act have been declared unconstitutional. FILE PHOTO | PSCU  

By PAUL OGEMBA
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Eight offensive clauses in the controversial Security Laws Act were Monday declared unconstitutional, striking a blow against the government’s push for tough measures to curb terrorism but signalling a victory for citizen freedoms and human rights.

Even as the five High Court judges threw out the controversial sections passed amid acrimony in Parliament, they declared that they would not hinder the fight against terrorism and insecurity.

Judges Isaac Lenaola, Mumbi Ngugi, Hillary Chemitei, Hedwig Ong’udi and Joseph Onguto said the eight clauses were a violation of fundamental human rights and did not add value to the fight against terrorism since there were sufficient laws which, if managed well, could secure the country from terror attacks.

The judgment served as win for Cord and the Kenya National Commission on Human Rights who were the lead petitioners challenging the Security Law (Amendment) Act 2014.

Media practitioners were among the winners after part of the new law which would have seen them pay up to Sh5 million fine or a jail term of three years for publishing or broadcasting images of terror attacks was declared unconstitutional.

“Insecurity in Kenya is not due to absence of laws but inefficiency of public bodies mandated to secure Kenyans,” the judges rule. “Even the Attorney General conceded during the hearing that there is corruption and lack of coordination among security agencies to curb terror threats.”

The judges chose to strike a balance between protecting the rights of citizens and the need to have laws to counter threats posed terrorism by declaring the eight clauses unconstitutional, null and void while upholding several other contested clauses.

“Section 12 of the security law is unjustifiable in any democratic society to the extent that it purports to limit media freedom. We find it unconstitutional for violating the freedom of expression and media as guaranteed by the Constitution,” ruled the judges.

According to the judges, the section had left many unanswered questions since it did not specify who would determine what story undermines police investigation or what image would cause fear among the public and help terrorists.

The judgment was a further relief to persons arrested on suspicion of engaging in criminal activities because the section which would have seen them detained for three months was struck out as well.

“Section 20 of the Act which amended the criminal procedure code is declared unconstitutional for being in conflict with the right to be released on bond or bail on reasonable conditions,” the judges said.

TRIAL BY AMBUSH

State prosecution will now have to inform an accused person in advance of the evidence they intend to rely on after the judges also declared Section 16 unconstitutional.

“The provision was totally unjustifiable as it would lead to trial by ambush. Disclosure of evidence is very important to enable the accused prepare his defence,” ruled the judges.

An accused person will also have a right to remain silent during proceedings contrary to provisions of section 26 of the Act which said remaining silent would automatically be assumed to be proof of guilt.

On limiting the number of refugees in the country to 150,000 as per section 48 of the Act, the judges ruled that the provision was not only unconstitutional but also a violation of international treaties.

The judges, however, upheld part of the Act which limits refugees’ movements.

The judges also struck a section seeking to create a National Police Service Board. They, however, gave the President authority to appoint the Inspector General of Police, saying it was wrong in the first place to have the IG nominated by the Police Commission.

“Section 86 of the Act which amended the National Police Service Act to give the President power to appoint the IG is constitutional. The public can still participate in the appointment through their MPs,” they ruled.

Other clauses which the judges said were constitutional included provisions allowing the Registrar of Persons to revoke an identity card and the National Intelligence Service to tap private telephone calls.

NATIONAL ASSEMBLY CHAOS

On the chaos that rocked the National Assembly when the amendments were being passed, the judges said there was no breach of Standing Orders to warrant declaring the entire Act unconstitutional.

“ We were not given any evidence to prove there were strangers who took part in the debate as the records shows there were only some moments of loud consultations,” ruled the judges.

On claims that there was no public participation, the judges ruled that the time given did not allow for collection of views from across the country and that the 46 institutions that presented their views were enough participation.

Cord leader Raila Odinga praised the ruling, arguing that the court had put a foot down to ensure that Parliament and the Executive acted within the Constitution.

“The court has further asserted its responsibility to protect human rights and gone all out to strike out all areas of the proposed laws impinging on civil liberties. Although the court has not agreed with us with on a few statements of facts particularly regarding how this law was passed, we still congratulate the court for standing up for the Constitution,” he said in a statement.