|Attorney General Githu Muigai
NAIROBI: The Attorney General has moved to the Court of Appeal to challenge last week's suspension of eight clauses in the new security law.
The AG also filed an application Tuesday seeking to have the suspension of the clauses by the High Court temporarily lifted by the Court of Appeal.
The effect of lifting the suspension order issued by High Court judge George Odunga, would be to have the law come into effect as enacted by Parliament and assented to by President Uhuru Kenyatta.
Last Friday, the High Court temporarily suspended the implementation of the eight clauses of the Security Laws (Amendment) Act 2014, pending hearing and determination of a case filed by CORD and the National Commission on Human Rights.
Justice Odunga said that some of the clauses touch on fundamental issues in the Bill of Rights.
The AG filed a Memorandum of Appeal and an urgent application to have the order suspended, arguing that under Article 23 of the Constitution, the court could not suspend an enacted law but can only declare it invalid as a final determination in proceedings.
He said the judge erred in failing to find that the court could not suspend the law at that stage.
The Government further argues that there was no sufficient evidence in court to warrant granting the stay or suspension of the law.
"The learned Judge of the High Court erred in law and in fact in failing to find that mere apprehension by the petitioners was insufficient to warrant the granting of the prayers for suspension sought," he AG says in the application.
He argues that the operation of the law could only be stayed or suspended after sufficient proof at the hearing of the main petition.
The AG says the judge should have upheld the position that a law was constitutional until it is proved, during proceedings, to be unconstitutional.
He says the judge contradicted himself in that while the petitioners challenged the process of enacting the entire law as having been flawed and unconstitutional, the court consequently suspended only certain sections of the same Act.
Further, the Government will be arguing that Justice Odunga erred in failing to refer the matter to the Chief Justice to constitute a bench to hear the applications for the orders of stay or suspension of the law.
The AG said the judge failed to appreciate that the National Assembly, in exercise of its power to legislate, was presumed to have the knowledge of facts relating to the gravity of the security situation in the country.
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