CORD launches court battle on security laws

The Coalition for Reforms and Democracy (CORD) yesterday moved to court to challenge the new security laws and have them declared unconstitutional.

According to CORD, the Security Laws (Amendment) Act 2014 signed by President Uhuru Kenyatta infringes on individual rights.

Senator James Orengo, who represented the coalition in court, argued that if the Act was inconsistent with the Constitution, then it must be declared a nullity as it could not take precedence over the Constitution.

In a suit where the Republic of Kenya and Attorney General Githu Muigai are listed as respondents, CORD also argued that the law, as passed by the National Assembly, contravened the Bill of Rights provided for in the Constitution.

Mr Orengo told the court that rights were an integral part of Kenya's democracy.

"The purpose of recognising human rights and fundamental freedoms is to preserve the dignity of individuals and communities and promote the realisation of the potential of all human beings," he argued.

Orengo based his argument on Article 19(3) of the Constitution that says the rights and fundamental freedoms in the Bill of Rights are inborn and cannot be denied through a legislation.

In his submission, Orengo claimed the laws were already in force two days after they were published in the Kenya Gazette on Monday, and argued that they were oppressive because they violated human rights.

"On the strength of the 10 amendments and their accompanying provisions that were signed into law, it is clear they are going to affect justice for accused persons among other far-reaching changes in the Bill of Rights as enshrined in the Constitution. Therefore, the said legislations that were signed into law are oppressive, unreasonable and unjustifiable in a democratic society like Kenya," Orengo submitted.

He said the rights could not be granted by the State and that they were only subject to the limitations contemplated in the Constitution of Kenya.

"The Memorandum of Objects and Reasons is misleading and fallacious as the amendments are not minor but extensive, substantial and wide and intended to overhaul the structures and operations of the security organs of the Republic of Kenya, the objects and principles of the Kenya criminal justice system, the application and compliance with the Bill of Rights," he argued.

Contravened rights

On rights, the Opposition argued that the law contravened the rights of equality and freedom from discrimination; human dignity; freedom and security of the person; privacy; freedom of conscience, belief and opinion; freedom of expression; freedom of the media; access to information; freedom of movement and residence; the right to fair administrative action, rights of arrested persons, the right to fair hearing or trial and the rights of persons detained, held in custody or imprisoned.

The Raila Odinga-led party, in its petition, argued that the Jubilee coalition overlooked the roles of both houses of Parliament while passing the legislation.

Orengo argued that the security law also affected the counties in which both houses were bound to consult to come up with a unanimous decision.

He pointed out that the flaw in the Security Laws (Amendment) Bill 2014 was that it was not referred to the Speaker of the Senate, Ekwe Ethuro, after it was passed by the National Assembly last Thursday.

He argued that the Constitution bound both speakers - of the National Assembly and the Senate - when passing laws that had an impact on both the nation and counties.

"The business of considering and passing any bill is not embarked on and concluded before the two chambers, acting through their speakers, address and find an answer for a certain particular question: What is the nature of the bill in question?" he said.

Orengo was of the view that before a bill goes through the motions of debate, passage and final assent by the President, both speakers ought to measure if it is special or ordinary in nature and if it concerns the counties, or is of a monetary nature.

He argued that the Constitution did not grant Ethuro or National Assembly Speaker Justin Muturi special rights over the other to determine the nature of a bill. This, he said, would result in usurpation of powers to the bias of the constitutional principle of the harmonious interplay of State institutions.

The issue of chaos in the National Assembly was cited in the petition as a reason why the law should not have been passed last Thursday.

In the case before High Court judge Isaac Lenaola, CORD accused Mr Muturi of losing control of the House, adding that he acted in a biased manner.

According to CORD, strangers including officers from the office of the Sergeant-at Arms of the National Assembly and the security personnel assigned to Parliament voted when questions relating to the amendments were proposed for decision and when the question was proposed that the bill should be read a third time.

Justice Lenaola, who certified the matter as urgent, directed CORD to serve the AG and the matter to be heard inter parties at 11am this morning.