The government has moved to court seeking to overturn last week’s ruling which suspended eight clauses of the Security Laws.
High Court Judge George Odunga had, in his ruling on Friday, suspended eight contentious clauses of the laws pending the hearing of the case before a three judge bench of the High Court to be appointed by Chief Justice Willy Mutunga.
However, the government, through Attorney-General Githu Muigai, said in their application at the Court of Appeal that Justice Odunga erred in law and in fact in failing to appreciate that there was not sufficient material evidence on the record to warrant the suspension of the law.
The Coalition for Reforms and Democracy (Cord) and the Kenya National Commission on Human Rights (KNCHR) who are the applicants in the case praised the ruling saying the court had granted orders that serve the interest of the public.
However, in the application filed at the Court of Appeal, the AG said that the court failed to appreciate the fact that the National Assembly, in exercising its power to legislate, was presumed to be possessed of the knowledge of facts relating to the gravity of the security situation in the country that warranted the enactment of the law.
Further, that the court ought to have held that the National Assembly having complied with the provisions of Article 24(2) of the Constitution, and having built into the suspended clauses, “mechanisms to safeguard the bill of rights,” the provisions that he suspended were not a danger to the Bill of Rights and that there were no strong and cogent reasons to warrant the issuing of a suspension order.
He said the judge failed to consider the fact that the court had no jurisdiction to suspend legislation at an interlocutory stage.
“The judge failed to take note that in the circumstances of the case, the operation of the law could only be suspended after sufficient proof at the hearing of the substantive petition,” said the AG.
It is the AG’s case that the judge ought to have referred the matter to the Chief Justice for the constitution of a bench to hear the applications for conservatory orders of stay or suspension of the law.
“The suspended clauses were not in breach of Article 25 of the constitution and the Act was not on the face of it unconstitutional and any stay or suspension orders, if merited, had to await a discussion of the merits of limitations at the hearing of the substantive petition,” he said.
Further, that the judge acted against the constitutional order in that in granting the stay of the operation of the law, “he gave orders that were in breach of the doctrine of separation of powers”.
A proper and holistic interpretation of Article 23 of the Constitution does not envisage conservatory orders in respect of legislation but that the only redress the court may issue is to declare, if merited, the invalidity of any law as a final determination in proceedings.
“The judge failed to uphold the doctrine of presumption of constitutionality of the law till the same was proved to be unconstitutional. He also contradicted himself in that whilst the challenge to the entire Act before him was premised on an allegedly flawed and unconstitutional process, he consequently suspended only certain sections of the same Act,” said the AG.
He said the mere apprehension by the petitioners was insufficient to warrant the granting of the prayers for suspension sought.