Allow courts to provide direction on police laws

The High Court in Nairobi temporarily halted implementation of some clauses of the Security Laws (Amendment) Act, 2014, preparing ground for the Supreme Court to determine whether or not some provisions of this law are unconstitutional.

Presiding Judge Justice George Odunga shelved eight clauses of the law which he noted would need further scrutiny. However, these conservatory orders have not looked into constitutionality of the eight clauses—this will be the mandate of the Supreme Court following a full hearing of the petition filed by the Coalition for Reforms and Democracy (CORD) and the Kenya National Human Rights Commission (KNCHR).

Therefore, the substance of these clauses will not be argued here — whether it is the amended Public Order Act which makes it mandatory for publishers to seek permission from the police before publishing images of terrorism victims, or aspects of the law that give the National Intelligence Service the mandate to monitor private communication to obtain information considered a threat to national security.

The Security Laws (Amendment) Act, 2014 has been a subject of debate since it was controversially passed by the National Assembly on December 18. Not surprising Justice Odunga took note of the irregular manner in which the vote was conducted.

This is not the first time that the passage of laws by the National Assembly has been contested. The Senate has already declared it would seek an advisory opinion from Supreme Court over 47 laws passed by the National Assembly without its input, maintaining that laws that touch on counties must get its seal of approval.

As these laws assented to by the President are challenged, there could be protracted legal battles ahead that could derail implementation of aspects the Constitution.

In a democratic culture, the involvement of courts to render opinions on controversial laws should be encouraged so that demarcations can be established if the written law does not expressly determine the legal boundaries. And this is how the suspension of the eight clauses should be viewed— through a jurisprudential prism rather than a political one.

But we may be asking too much of our politicians to be prudent and not seek to gain political capital out of what some might argue are purely procedural administrative matters,

In the coming months, we are likely to see more citizen participation in discussions about the Bills earmarked for debate as the country finalises enactment of laws as prescribed in the sixth schedule of the Constitution. The Bills are: Public Services Bill, Persons Deprived of Liberty Bill and the Environment Management and Coordination (amendment) Bill. This participation, whether through civic society or community based organisations, should be sought and encouraged.

What should be avoided are political brinkmanship and other associated actions bound to cause conflict. Therefore, threats of recourse to mass action are reprehensible and will not do.

As Kenyans become more familiar with rules of procedure in Parliament, the conduct of those within its hallowed precincts will be on the spotlight. There have been criticisms that quality of debate in the National Assembly, the Senate or county assemblies has not met the threshold of public acceptance. Not only is debate lacking in depth and intellectual acuity, disregard of rules and laws are abysmally common place.

These are matters that will bear closer scrutiny in 2015. As we wait for the full hearing of the petition over the Security Laws (Amendment) Act, we must expect prudence and sobriety from the political actors. Any sort of incitement is unacceptable.