The government will on Monday defend its position on the controversial security laws in a case filed by Cord in the High Court.
Director of Public Prosecutions Keriako Tobiko and Solicitor-General Njee Muturi are expected to argue before the court that the case , which has attracted both local and international criticism, should be dismissed since the Security Laws (Amendment) Act 2014 is constitutional.
Cord and the Kenya National Commission on Human Rights filed a case to annul the law on the grounds that it is unconstitutional.
Critics have argued that the anti-terrorism laws overstep basic rights and freedoms, international human rights law and is an infringement on the Constitution.
Last week, Mr Justice Isaac Lenaola declined to grant a cautionary conservatory order suspending the new laws as sought by Cord, which means that they can come into force any time they are gazetted. He argued that both sides in the case must be heard before any orders were issued.
The Opposition says that the Bill lacks public participation as required by law, it is an affront on public goodwill and against the spirit of nationalism. Cord says the Senate was also not involved in discussions on the new law.
Lawyer James Orengo in his submissions said the Bill was passed unconstitutionally as it involves matters touching on the counties and the Senate was not involved.
The human rights agency says the process failed to meet the constitutional threshold and that the amendments made to the Act “have far reaching consequences and should not have been brought through a miscellaneous process.”
There are more than 10 clauses in the law which Cord and the agency claim to be unconstitutional. They include rights to assembly and infringement on the freedom of the media.
The new law requires that anyone intending to hold a public rally must get the nod from the Cabinet Secretary in charge of Security and that journalists will have to get permission from the police to air or publish pictures of a terrorism act or else be jailed for three years with fines of upto Sh5 million.
Immediately after signing the Bill, President Uhuru Kenyatta in a televised address to the nation said the amendments are for the good of Kenyans.
He said the anti-terroriam law neither flouts the Constitution nor goes against the grain of the Bill of Rights.
“The new law will empower the security networks and go a long way in the fight against terrorism and does not violate the Bill of Rights in the Constitution as claimed by its critics,” he said.
Similarly, Deputy President William Ruto has defended the laws and accused the Opposition of playing politics with the security of Kenyans.
“We have no plan to rob Kenyans of the gains given to them by the Constitution. We are not amending the Constitution in any way. We want to use the laws to guarantee Kenyans’ security,” he said.
TURN TO PUBLIC
In Siaya, five ODM lawmakers vowed to turn to the public if the High Court rules in favour of the Jubilee.
MPs Oburu Oginga (nominated), David Ochieng’ (Ugenya), Gideon Ochanda (Bondo), Christine Ombaka (Siaya Woman Representative) and Nicholas Gumbo (Rarieda) said that they would not allow the implementation of retrogressive laws.
Dr Oginga accused Jubilee of secretly amending the Constitution under the disguise of tackling insecurity.
“As the Opposition, we will not allow the rights Kenyans who have fought for it for more than 40 years be taken away from them. We have come a long way to have these rights and we cannot watch them being taken away,” he said.
He warned the Jubilee coalition MPs that they would be the ones who would fall victims of the laws they passed.
“We should always be mindful of others welfare, the Jubilee MPs should be aware that the will be prey to the same laws if they are not careful,” he added.
Mr Ochieng’ urged the President to reflect on ways of taking Kenya in the right direction next year, now that he has no case at the ICC.