Kenya: Political heat may continue rising after the High Court suspended eight of the 47 pieces of the controversial security legislation recently signed into law by President Uhuru Kenyatta.
Attorney General Githu Muigai has vowed to appeal the ruling by Justice George Odunga, and now wants the main suit heard by the three-judge Bench constituted by Chief Justice Willy Mutunga.
The Coalition for Reforms and Democracy (CORD), through their lead counsel James Orengo, is expected to point out areas the court ruled lacked merit in law.
The ruling came barely three days after the Senate lost a chance to amend clauses deemed “offensive” following Speaker Ekwe Ethuro’s verdict that the House could not debate a matter that was active in curt.
CORD moved to court after President Kenyatta signed into law the Security Laws (Amendment) Bill, effectively dashing hopes Parliament or any other institution could stop their implementation.
The laws have put the Opposition and the media in a spin as the State tightens screws on flow of information, which according to CORD’s petition, undermine fundamental freedoms and civil liberties.
In his presentation, Orengo, who was assisted by Amos Wako and Anthony Oluoch, raised concerns about the sacrosanctity of the legislative process and urged the court to set aside the law as it has the potential to open floodgates for flawed legislations.
The case is also premised on the argument that Parliament violated parliamentary standing orders and that the Bill ought to have been forwarded to the Senate for debate as it was a matter that affected counties.
The Law Society of Kenya (LSK) and the Kenya National Commission on Human Rights (KNCHR) have been enjoined as interested parties.
The petitioners also argue House Speaker Justin Muturi set the tone of intolerance and bias by presiding over proceedings of the Special Sitting of House on December 18, during which the Bill was passed.
The new law criminalises publishing or broadcasting of “insulting, threatening, or inciting material”, images of dead or injured people “likely to cause fear”.
Information that undermines security operations, including on social media, is punishable by a fine of Sh5 million, a three-year jail term or both. The law also allows terrorists to be held for questioning for 360 days.
The new security laws establishes a national counter-terrorism centre to co-ordinate efforts by the security agencies in the fight against terrorism. Immigration officials who fraudulently issue national identification cards to international criminals are now liable to a minimum of 15 years in jail.
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Owners of premises used by terror suspects to plan terrorism or where weapons are recovered from may face up to 30 years in prison.
The law, which also limits the number of refugees and asylum seekers to 150,000, has elicited international criticism, with Human Rights Watch and the US government weighing in with disapproval.
The case file by CORD has parallels with how the Ugandan Constitutional Court ruled on a petition on an anti-gay legislation that was similarly rushed through Parliament and which also drew stinging criticism at home and abroad.
CORD, LSK and KNCHR argue that submissions of Ugandan human rights campaigners who last year sought nullification of anti-gay laws controversially passed by Uganda Parliament bear semblance to the chaotic scenes witnessed in the National Assembly during a special sitting of the House that passed the security laws.
In the Uganda case, a four judge-bench consisting of Acting Deputy Chief Justice SBK Kavuma, Justice of Appeal AS Nshimye, Justice Eldad Mwancusya and Justice of Appeal Rubby Aweri Opio quashed the anti-gay law citing lack of “Coram”.
“We have heard and considered the useful submissions made by both counsel and we are highly indebted to them.
Though much has been said, two simple questions emerge for our answer on issue one. Was the Anti-Homosexuality Act passed in accordance with the law?
Whether the petitioners had proved that during the enacting process of the Anti-Homosexual Act, the 4907 Rt Hon Speaker ignored to invoke Rule 23 when the Prime Minister and Hon. Betty Aol raised an objection that there was no quorum at the time the Bill was put to vote at the Second and Third reading as alleged?” the judges said in their ruling.
While the petitioners argued that there was no evidence of a lack quoram in Parliament when the law was passed, the respondent – the Attorney General – wanted the burden of proof that there was a quorum to be shouldered by the former.
“We agree with learned counsel Mutesi Patricia (from AG’s office) that the burden of proof of that fact rested with the petitioners who alleged violation of various provisions of the Constitution and rule 23 of the rules of procedure of Parliament. An exception to the above rule is that where one has alleged fact and the person against whom the fact is alleged, does not deny, he is presumed to have accepted that fact,” the judges said in their verdict.
The court further observed that although the respondent was served with the petition and accompanying affidavits by lawyer Fox Odoi and Prof Ogenga-Latigo that pointed out the alleged violation in enactment of the Anti?Homosexuality Act, the commissioner of civil litigation Dennis Bireije, the respondent did not specifically deny the said allegations.
“In view of the above rule and in the absence of a specific denial by the respondent in his pleadings with regard to issue one, we are unable to accept the submission of learned counsel Patricia Mutesi, for respondent, that the petitioners had a burden to do more than what they did. The evidence contained in the affidavit (including the annexure of the Hansard), of Fox Odoi stood strong and unchallenged.
The court’s verdict on the second item isolated by the judges was that the respondent’s submission did not even attempt to suggest National Assembly speaker responded to the argument about quorum.
“We come to the conclusion that she (Speaker) acted illegally. Following the decision of Makula vs Cardinal Emmanuel Nsubuga, supra failure to obey the law (rules) rendered the whole enacting process a nullity; it is an illegality that this court cannot sanction,” they said.
“That the Act of the Ninth Parliament in enacting the Anti-Homosexuality Act 2014 on December 2013 without quorum in the House is inconsistent with and in contravention of ...the constitution and ...parliamentary procedure. The act of the Speaker of not entraining the objection that there was no quorum was an illegality under...rules of procedure, which tainted the enacting process and rendered it a nullity. The Act (anti-homosexuality law) so enacted by this reason is unconstitutional... the issue therefore disposes of the whole petition.”