Opposition loses round one of battle against laws on terror

Solicitor General Njee Muturi at Milimani Law Courts, yesterday during a case filed by CORD on the anti-terror laws. [PHOTO: MBUGUA KIBERA/STANDARD]

The Opposition lost the first round in its fight against the anti-terror laws recently enacted after the High Court declined to temporarily suspend their operationalisation pending determination of the suit.

High Court Judge Isaac Lenaola declined to grant the Coalition for Reforms and Democracy (CORD) the orders they were seeking and instead told the two parties to return to court on Monday for the hearing of the application.

CORD, which has moved to court to challenge the constitutionality of the passed laws, had on Tuesday urged the court to suspend the operationalisation of the laws.

But yesterday, Solicitor General Njee Muturi, appearing for Attorney General Githu Muigai who is named as the second respondent in CORD's suit, opposed the application by Senator James Orengo, who is representing the petitioners.

Muturi asked the court not to issue the orders on grounds that as of December 22, the security law had already come into force.

"This is a substantive question of law that has been raised and we urge the court to grant us more time before the matter is heard. It is, therefore, our request that a three-judge bench be constituted to hear this matter at length," Muturi said.

He said they were served with the 500-page documents late. The Solicitor General instead asked for 14 days to enable the AG's office to file its response.

Director of Public Prosecutions Keriako Tobiko, who was enjoined as an interested party, asked that Chief Justice Willy Mutunga constitute a bench to hear and determine the matter.

"This court has powers to grant the said orders but the burden rests upon the petitioners and cannot be discharged at this interim stage," Tobiko said.

SUFFICIENT TIME

He asked to be served with the application and be given sufficient time to adequately prepare to respond to the issues raised by CORD. Orengo urged the court to balance the scales of justice and issue the orders suspending the laws.

"The threshold is not proof of violation, but even mere threat of the new security laws requires the court's intervention by granting the orders we are requesting. The basic argument remains that the introduction of the new clauses ought to operate on the rule of law and values enshrined in the Constitution. This court should, therefore, not hesitate to invoke its jurisdiction in protecting the Constitution," Orengo argued.

Justice Lenaola gave the AG up to Sunday to file a response to the petition by CORD and that they should appear before him on Monday when the court will decide whether to issue the orders suspending the new law.

The case has sucked in more parties, with the Commission on the Implementation of the Constitution (CIC) seeking to be enjoined as respondent and a friend of the court.

CIC, through lawyer Paul Nyamondi, was ordered to make a formal application highlighting their interest in the case.

Justice Lenaola said he had to strike a balance between the petitioners (CORD) and respondents (Republic of Kenya and the AG) in the case since the issues raised were sensitive.

The case will be before the court next week on Monday.