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Raila in court as CORD wages battle to reverse new security laws

COUNTIES
By CAROL RWENJI | Jan 29th 2015 | 4 min read
From left: Lawyer TJ Kajwang’ (left), CORD leader Raila Odinga and Homa Bay Town MP Peter Kaluma leave the Milimani law court Wednesday after the hearing of a case over the controversial Security Amendment laws 2014. [Photo: courtesy]

NAIROBI: The rivalry between the Jubilee and CORD coalitions played out in court Wednesday when former premier Raila Odinga attended the hearing of a case the Opposition has filed challenging the legality of the controversial Security Laws (Amendment) Act 2014.

Raila was present throughout Wednesday’s hearing as CORD lawyer and Siaya Senator James Orengo tore into the laws passed by the Jubilee dominated National Assembly in acrimonious circumstances last month.

At the time, the House descended into chaos with CORD and Jubilee legislators engaged in a shouting and shoving match that saw the Deputy Speaker Joyce Laboso drenched with water from a bottle and ODM Chairman John Mbadi tear the order paper into tiny little pieces.

In stark contrast, Wednesday’s proceedings before a five-judge bench were very dignified, with Orengo using the Constitution to argue that the Bill that created the Act, and which is close to President Uhuru Kenyatta's heart, failed to go through required legal procedures and that the public was not invited to participate in its drafting.

Orengo punched holes into the Security Laws Amendment 2014 in a bid to convince the judges that the document assented by President Kenyatta was bad in law.

He revisited the December 18 incident that saw Members of Parliament verbally and physically confront each other, saying the respondents (Attorney General, Director of Public Prosecutions and Solicitor General) failed to include the actual proceedings of the House in the documents filed at the court registry.

READ: Court of Appeal declines to lift orders suspending 8 clauses in security act

"The court should question why the record before the court is so sanitised that it lacks what was seen by the public. Even the simplest disorder that leads to adjournment of the House is usually put on record," he told the court as Raila listened.

During the bill's second reading on December 11, last year, the court was told, various MPs raised issues on public participation, constitutionality of the bill and its referral to the Senate.

"The Speaker tried to deal with all the issues raised except that of the Senate. Had he dealt with it, the bill should have been thrown out on the same day," he said.

The case is being heard by justice Isaac Lenaola, Mumbi Ngugi, Louis Onguto, Hilary Chemitei and Hedwig Ongudi.

"It is our submission that there was no public participation on the basis of the threshold set out by the Constitution," he added.

CORD moved to court to challenge the new laws on grounds that they are oppressive and an affront to the Constitution. This was after its efforts to have the National Assembly amend some of the controversial sections of the law failed.

Subsequently, on January 2, High Court Judge George Odunga suspended eight clauses of the new Act and referred the case to the Chief Justice who then appointed a five-judge bench to hear the case.

The Government challenged Odunga's move at the Court of Appeal and the case was dismissed.

CORD wants the High Court to determine whether the security laws contravene the Bill of Rights, and whether President Kenyatta and the National Assembly flouted the Constitution in passing them.

Lawyer Paul Mwangi, who is part of the CORD's legal team, asked the court to declare sections four, five and twelve unconstitutional, saying they limit freedom of the media.

"Security of the people should be taken seriously. One must consider human rights when dealing with national security," he said.

LEGISLATIVE POWER

When suspending the eight clauses, Justice Odunga said some of them touch on fundamental issues in the Bill of Rights. The AG filed a memorandum with the Court of Appeal seeking to have the order lifted, 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.

"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," the AG said in the application.

He said Justice Odunga jumped the gun because a law is constitutional until it is proven unconstitutional and should have referred 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 National Assembly properly exercised its power to legislate.

Among the laws suspended is one that makes it mandatory for people to seek permission from the police before publishing images of terrorism victims and a clause that gives the National Intelligence Service powers to monitor private communication and "authorise any member of the service to obtain any information, material, record, document or thing" considered a threat to national security, without first getting a court order.

Another law restricting the number of refugees entering the country and making it more difficult for them to be granted asylum was also suspended.

Thursday, interested parties such as the Refugee Consortium are expected to argue their case since Section 48 of the new laws affect them when read alongside the Refugees Act.

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