On January 2nd 2015, the High Court ruled regarding a petition tabled by the CORD Coalition and the Kenya Human Rights Commission (KHRC) questioning the legality of the process by which The Security Laws (Amendment) Act 2014 and the constitutionality of some of its clauses. They sought orders to have these sections suspended pending determination of a full hearing.
Judge George Odunga did not have kind words for Speaker Muturi as he said “… if the process was shambolic as it is alleged, it would not matter who caused the chaos since Standing Order 98 places the duty of ensuring that order is maintained in the House squarely on the Speaker which entails ensuring that pursuant to Standing Order 104 every member is seated at all times when in the Chamber except when passing to and from his seat or when speaking.”
The Judge declared that the issues raised by the petitioners were weighty constitutional issues which required to be investigated by the Court. He added that issues raised substantial questions of law and also affected fundamental freedoms enshrined in the Bill of Rights which could be infringed by the implementation of certain sections. Consequently, he stated ‘what is at stake is the balancing of the need to secure the country on one hand and the protection of the Bill of Rights on the other both of which the State is enjoined to attain.’
In ruling, Judge Odunga used “the guided missile” approach to target only the offensive parts of the Act. The court decided to suspend only those provisions which disclose a danger to life and limb or imminent danger to the Bill of Rights at that very moment by way of conservatory orders. However, this does not amount to a determination that those provisions are unconstitutional.
Clauses in The Security Laws (Amendment) Act, No 19 of 2014 suspended pending the hearing and determination of these petitions were:
(1) Clause 12 which inserted section 66A to the Penal Code.
(2) Clause 16 which inserted section 42A to the Criminal Procedure Code.
(3) Clause 26 which inserted section 20A to the Evidence Act.
(4) Clause 29 which inserted section 59A to the Evidence Act.
(5) Clause 48 which inserted section 16A to The Refugees Act.
(6) Clause 56 which repealed and substituted Part V of The National Intelligence Service Act.
(7) Clause 58 which amended Section 65 of the National Intelligence Service Act by deleting the word “Parliament” and substituting therefore the words “National Assembly”.
(8) Clause 64 to the extent that it introduces sections 30A and 30F of The Prevention of Terrorism Act.
This was because:
Clause 12 of the Act introduces a Clause which limits the freedom of expression and freedom of the media and imposes a hefty fine of Kshs 5,000,000 for the offenders or 3 years in prison or both. If implemented, there is imminent danger of the offenders losing their liberty.
Clause 16 has the effect of denying the accused person evidence sought to be presented against him until just before the hearing. It would render the process unfair.
Clause 26 of the Act introduced an admission of statement by consent in criminal trials. This amendment is objected as contravening Article 50(2) (l) with respect to self-incriminating evidence.
Clause 29 seems to introduce summary procedure to criminal proceedings by introducing proof by way of notice though it is called agreement. Similar considerations as above hence suspended.
Clause 56 introduced new Part V dealing with “special operations” which are operations meant to neutralize threats against national security. The provisions thereunder then proceed to deal with what are called “covert operations”. It is contended that this provision is likely to take the Country back to the pre-2010 Constitution dark days. The current Constitution by way of a referendum, did intend to have a break from the past.
Clause 58 seeks to replace “Parliament” with “National Assembly” effectively removing the Senate from playing oversight role on the National Intelligence Service. This provision is objected to as having been inserted without recourse to the Senate.
Clause 64 introduced an offence of publication of offending material which is defined as publication or statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism. Government is obliged to take all lawful measures to nip acts of terrorism and such measures ought to be supported by Kenyans of all walks of life. Such moves however must pass Constitutional and legal pedestal.