The High Court has suspended sections of the contested security laws, pending a determination on their constitutionality.
Justice
George Odunga on Friday upheld preliminary objections against the
amendments passed by the National Assembly on December 18.
Appearing
to exert judiciary's independent supreme authority over Parliament, the
court shelved eight clauses in the contentious Bill, which will then be
subjected to closer scrutiny.
This
will be done once the Chief Justice constitutes a bench of not less than
three judges for the hearing and determination of the petition.
Justice
Odunga concurred that there was need to suspend the laws temporarily
and subject them to further scrutiny in respect to the contentious
issues raised in the petition by the Coalition for Reforms and Democracy
(Cord) and the Kenya National Human Rights Commission (KNCHR), which
sought an annulment of the entire Act.
DARK DAYS
Cord
and KNHRC had argued that with the advent of the new law, the country
was at risk of reverting to the dark days of torture, dictatorship and
gagging of the media.
The Security Bill was passed by the National Assembly after a debate marred by chaos pitting Jubilee MPs and opposition MPs.
The
President later signed the Bill into law despite the acrimony, stating
it was for the good of the country to stem the rising tide of terrorism.
On
Friday, the judge ruled that the sovereignty of the country stemmed
from the people and that the arms of government only exercise “delegated
authority which is protected by the constitution.”
He stated that all state organs must bow to the will of the people.
He
said that in passing laws, Parliament must filter them through the
sieve of constitutionalism, including those meant to protect the
security of the nation.
The judge in
his ruling equally restated the authority of the Senate in terms of the
oversight role in security matters, which the new law attempted to
remove.
Justice Odunga, in suspending
the eight clauses, also stayed “covert operations” by security agents
which the petitioners argued may have compromised and undermined the
Bill of Rights, reaffirming that the rights to a fair trial must be
jealously protected by the courts.
PREJUDICED PROCESS
Falling
short of suspending the entire Act, the judge also took a swipe at the
flawed manner in which the Bill was passed on December 18 2014 stating
that the entire process may have been prejudiced “as strangers” may
have been amongst those who voted in support.
He said this allegation needed a further interrogation.
The
judge also upheld that the provision that was going to limit the number
of refugees to 150,000 goes against the International Law, of which the
country is a signatory.
The sections that were suspended included sections, 12, 16, 26, 29, 48,56,58,64 of the Security Laws (Amendment) Act 2014.
There
have been apprehensions that Section 56 and Section 64 of the Act were
inconsistent with the criminal justice system and may have been rife
with mischief and transgressions to targeted parties.
The
two amended sections had handed security agencies with overarching
powers to crack down on perceived terror suspects including holding
suspects for over 90 days without trial.
The
law also threatened the freedom of the media in reporting terror
related stories, with accompanying penalties of up to three years in
jail and additional fines of Sh5 million if reports are seen to
“undermine investigations and security operations relating to
terrorism.”
Section 26, which dealt
with the Evidence Act as amended, would violate the constitutional
rights of accused persons to a fair trial, according to the petitioners.
The
new law wanted evidence withheld from accused persons “as they may
interfere with witness” and only disclosed at the onset of trial.
Section
58 of the Security law would have impugned on the rights of individuals
privacy as it would have empowered the National Intelligence Service to
tap conversations, investigate bank accounts amongst other sweeping
powers without a prerequisite court order.
FAIR TRIAL
Section
12 and 16, according to the petition was meant to limit the rights to
fair trial and was seen as unreasonable to the extent that it denied an
accused person adequate time and facilities to prepare a defence. “The
right to a fair trial cannot be limited…” the judge observed.
He
added that the issue of public participation was also questionable as
the petitioners had hinted that no meaningful debate was realised in the
time constrained process that saw the Bill signed into law.
“The constitution values public participation in a process such as this one,” he said.
The
judge, however, clarified that in issuing the conservatory order he had
not interrogated the constitutionality of the clauses, and should it be
proven otherwise at a later stage in the full hearing of the petition,
then there would be no contradictions if they are so declared.
He said other sections that had raised concern posed no immediate threats to warrant similar orders.
“Our
country has been the victim of an undeclared war and we need new
techniques and laws to eradicate the menace,” the judge said.
He said any rightful thinking Kenyan must support all “lawful” steps taken to fight terrorism.
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