Police should not take orders from National Security Advisory team, court says

The High Court has ruled that the National Security Advisory Committee has no powers to order the police on how to conduct its duties.

The case was filed by the Law Society of Kenya. It claimed the resolution by NSAC was targeting Deputy President William Ruto and his allies while allowing the president and his side to continue with their public meetings.

The society was seeking orders to suspend the directives issued by the NSAC and to stop the police from breaking up public gatherings or seeking to authorise such meetings before they take place.

According to High Court judge Anthony Mrima, the committee and the Interior ministry are independent offices just as the National Police Service Commission and therefore cannot issue orders to the latter.

“In sum, the directives issued by NSAC on October 7, 2020, and ratified by the Cabinet on October 8, 2020, are unconstitutional ineffective and void ab initio for directing law enforcement agencies on how to discharge their duties,” he said.

Justice Mrima also prohibited Inspector General of Police Hillary Mutyambai from receiving and implementing directives from NSAC.

The judge was of the view that the ban was blanket and had even curtailed the right to worship. He was of the view that it was couched in a way that the police could enforce unlawful orders.

“The Order Act applies to all public meetings. It does not make any exception at all. Therefore public meetings in churches and mosques are banned since churches and mosques are public places. The section is, therefore, an affront to several Constitutional rights and fundamental freedoms,” justice Mrima observed.

The judge dismissed the Attorney General’s argument that NSAC is a part of the presidency, noting that the Constitution is precise that peoples’ power can only be implemented through the Executive, Judiciary, Parliament, and Devolved governments.

He was of the view that counties have their own ways of enforcing Covid-19 regulations and which the police are a part of.

The judgment, however, does not affect the directives issued by President Uhuru Kenyatta and Health CS Mutahi Kagwe?.

“On one hand, you outlaw a meeting that was scheduled to be presided over by the deputy president in Mumias while on the other you allow similar meetings convened by the president and former Prime Minister Raila Odinga to proceed,” said LSK president Nelson Havi.

LSK argued that the ban on meetings in order to contain political weaponisation of public gatherings was illegal, discriminative, and targeted certain individuals.

 “The directive is being used discriminatorily and selectively to suppress divergent opinions. It seeks to limit the rights and freedoms to opinion, expression, association, and campaign for a political cause and is therefore unconstitutional and invalid,” said Havi.

LSK argued that as a result of the directive, several public meetings have been declared unlawful and banned with the use of brute police force. The society cited Ruto’s fundraiser at St Leo Catholic Church in Mumias East Constituency in which the police declined to issue a permit to on grounds of security threats and public health instructions to contain the spread of Covid-19.

Havi argued that whereas the meeting in Mumias was scuttled, other meetings of similar nature were allowed to proceed, including the national prayer day hosted by President Kenyatta at State House and Raila’s meeting in Bondo where he hosted a delegation of elders from Mt Kenya.

Head of Public Service Joseph Kinyua, who chairs the NSAC, announced a raft of measures the government had taken to contain the rising political tension in public gatherings. The resolutions were approved by the Cabinet on October 8 last year.

The decision followed the death of two people in Murang’a after two opposing political camps clashed during a church function attended by Ruto.

Among the conditions issued by the security committee was that conveners of public meetings must notify the police at least three days before the event and that those attending must exercise a high sense of civic duty.

It also outlawed the use of offensive, inciting, and threatening language during such meetings; stopped the media from providing a platform for hate-mongers, and warned that social media users will be held responsible for any offensive message they post.

In the case, Havi accused NSAC of using health guidelines issued to contain the spread of Covid-19 as an excuse to curtail freedom of association and misuse the Public Order Act which allows the government to ban some meetings.

“The directives by NSAC in being selectively enforced by the police,” said Havi.