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Judges declare eight sections of new security law illegal

By KAMAU MUTHONI and WAHOME THUKU | Feb 24th 2015 | 6 min read
Siaya Senator James Orengo (left) and CORD co-principal Moses Wetang’ula in court Monday when the High Court ruled on a petition challenging the constitutionality of the Security Laws (Amendment) Act 2014. (PHOTO: STANDARD)

The Constitution’s Bill of Rights held sway yesterday as the High Court declared several sections of the Security Laws (Amendment) Act, 2014 illegal, including those criminalising freedom of the media.

The five-judge Bench declared Section 12 of the Act unconstitutional because it restricts freedom of expression.

The provision was one of the eight sections of the controversial law that the judges deemed to be unconstitutional even as the court cleared another eight.

The Bill was signed into law by President Uhuru Kenyatta on December 19, last year, prompting Coalition for Reforms and Democracy (CORD) and NGOs to file petitions challenging its provisions.

The Act amended 22 other laws that deal with security matters. The court mainly considered the law against the Bill of Rights under the Constitution.

It considered whether the law violated freedom of expression and the media, right to privacy, right of an arrested person to fair trial, entitlement to citizenship and registration of persons and the right to freedom of movement and those of refugees in Kenya.

The judges – Isaac Lenaola, Mumbi Ngugi, Hedwig Ong’undi, Hilary Chemitei and Louis Onguto – ruled on about 16 provisions in the new law, which were the subject of the controversy.

Section 12 of the Act had amended the Penal Code, making it criminal to publish or broadcast through print, digital or electronic means, or images of dead or injured persons likely to cause fear and alarm in the general public, or disturb the peace.

Anyone convicted of this was liable for a fine of up to Sh5 million, or three years in jail.

The judges ruled that amendments would impact on the freedom of the media.

The Bench termed the effect of the quashed section of law as “chilling” for the media, noting that the same did not have a bearing on fight against terrorism.

But they also warned the media not to abuse their freedom by publishing gross images or images that may offend the public.

They noted that Section 12 of the assented law was vague as to how the State is to ensure that the media did not encourage acts of terrorism, adding that the same was subject to misuse.

“Protection of freedom of expression is fundamental to the democratic society,” they ruled.

The judges, however, found no fault with a section allowing the President to nominate a person for appointment as the Inspector General of Police.

The court ruled that the provision did not violate the Constitution as the mandate to pick the nominee is the President’s.

Public participation

The judges held that there was concurrence between the two speakers of Parliament that the Amendment Bill did not concern counties, and there was public participation before its enactment and there was no violation of the standing orders of the House as alleged by the petitioners.

“The presidential assent to the bill was constitutional,” the judges held.

In their judgement, they allowed the Registrar of Persons to cancel identity cards obtained through fraud, forgery and other irregular means. Refugees will not leave the camps without permission of Refugee Camp Officer.

Judges also delved into the issue of placing a ceiling on the number of refugee who are to be in the camps. The law had placed a 150,000 as the maximum number of refugees allowed to stay in Kenya.

They quashed Section 48 of the Amended Act that had in turn introduced Section 18A in the Refugees Act.

They noted that the State had not indicated how it was to deal with the remaining 300,000 who are to be affected by the new legislation.

They also noted that other countries had not set a limit on the refugees that were to enter into their territories.

Justice Ngugi  noted that the law already provides ways to deal with errant refugees.

The court retained a provision allowing police to apply for further detention of a suspect beyond 24 hours, saying it did not violate the rights of the arrested person under the Constitution.

But the judges rejected a provision that some evidence may only be disclosed to a witness just before the trial, saying it violated the right to be informed in advance the evidence to be relied on by the prosecution.

They ruled that all evidence has to be disclosed early enough to enable the accused prepare a defence.

The court also allowed the State to appeal again the granting of a bond or bail to terror suspects and those charged with security-oriented crimes. They ruled that the provision did not violate the right to be released on bail.

The judges also held that section 42A which allowed the State to produce evidence in camera was against an accused person’s right noting that in such instance the accused could not have an opportunity to interrogate the same and prepare for defence.

They were of the view that introduction of section 42 A in the criminal law would lead to trials through ambush.

“Section 42A has introduced a blanket right to the prosecution in which the accused person has no time to prepare for defence or contact his lawyer. Disclosure of evidence ought to be done in advance,’’ they noted.

Section 20, which introduced Section 36A, making it optional for the court to grant an accused person a bail was declared unconstitutional.

“There is no justification to the amendments and thus we find it unconstitutional,” they said.

Creation of a National Police Service Board was declared unconstitutional. It had introduced a board that was to deal with the discipline of senior police officers.

The judges held that creation of the board would bring conflict between the board and the National Police Service Commission.

The Bench noted that the law had already granted NPSC the powers to deal with discipline issues in the police force adding that creation of another disciplinary body would overlap the role of the Johnston Kavuludi-led commission, and thus creating confusion and conflict.

The judges also delved into the process of passing the contentious law noting that they could not depend on the video clip produced before the court, claiming that the havoc-wrecked house could not have passed a proper legislation.  They held that a Hansard report produced by the clerk of the National Assembly showed that the normal legislative process was carried out.

The judges held a contrary opinion to that of CORD about the enactment of the contentious law, saying that the evidence produced before the court was not enough to declare the entire legislation unconstitutional.

The five judges ruled that a motion was presented before the National Assembly, debated and voted on although they noted that the Hansard indicated that there were “loud engagements” on the floor of the chamber.

Tap telephone

The court also declared constitutional the provision allowing the National Intelligence Service  to tap private telephone conversations, because the investigating officer still has to seek a warrant from a court of law before tapping or planting any device designed to gather information.

“The scale tilts in favour of the common good,” they said, adding that the right to privacy is not absolute.

The AG applied for the effect of the judgement to be suspended pending an appeal to the Court of Appeal, but the court asked him to make a formal application.

CORD and ODM leader Raila Odinga welcomed the judgement, and said it was mainly what the coalition wanted.

He said that although the judges had not agreed with them on several issues, they defended the Constitution. Raila said they would seek second opinion on the prayers not granted by the court.

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