CORD wins round one as court suspends eight clauses of controversial Security Laws

CORD supporters celebrate Friday after the High Court suspended implementation of some of the security laws enacted recently. [PHOTO: ELVIS OGINA/STNADARD]

NAIROBI: The High Court has suspended implementation of eight controversial clauses in the Security Laws (Amendment) Act and subsequently asked Chief Justice Willy Mutunga to constitute a three-judge bench to consider a petition by the Opposition challenging the new laws.

And there were celebrations among CORD supporters after the High Court halted operationalisation of various clauses, which came into force after the controversial Act was signed into law by President Uhuru Kenyatta.

Among the suspended clauses is one that amended the Public Order Act and made it mandatory for people to seek permission of the police before publishing images of terrorism victims.

Also suspended is a clause that gave 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.

A law restricting the number of refuges entering the country and making it more difficult for them to be granted asylum was also suspended pending hearing and determination of the main petition.

“The effect of the implementation of this amendment would be the immediate reduction of the number of refugees which may lead to evacuation of some of them from the refugee camps and deportation of not a small number of refugees from the country. If this was to happen before the petitions are heard, nobody including the learned Solicitor-General would be able to enlighten the Court how the situation would be restored,” said Justice George Odunga.

The judge, in his ruling, said the threat of terrorism cannot be used as an excuse to violate fundamental human rights. “... Such moves must pass constitutional and legal muster,” said the judge.

PRAYER DENIED

CORD had sought orders suspending the legislation pending determination by the court of the constitutionality of the various clauses.

The High Court, however, denied denied the prayer to suspend the entire legislation. CORD together with the Kenya Human Rights Commission (KHRC) have sued the Republic of Kenya and the Attorney General.

When the case first came up for hearing before Justice Isaac Lenaola, the Jubilee coalition, Director of Public Prosecutions, Kituo cha Sheria and Katiba Institute applied to be enjoined. The Law Society of Kenya and the Commission for the Implementation of the Constitution (CIC) were allowed to appear as friends of the court.

Friday, the court also decried to suspend the clause that removes the role of the National Police Service Commission in the appointment of the Inspector General of Police, and instead vests the powers in the President and the National Assembly. “There is no imminent threat that cannot await determination. I see no reason to suspend the same,” the judge said.

In the petition, CORD faulted the manner in which the laws were passed in Parliament. “During the proceedings of the Committee of the Whole House there was chaos and bedlam in the chamber and the debate could not be conducted in accordance with the Rules of Debate contained in the Standing Orders and it was incumbent upon the Speaker to ensure that debate was held with dignity, respect and decorum as is the practice and tradition of parliaments all over the world,” read the petition. Opposition leader Raila Odinga who has been on the warpath over the Bill welcomed the ruling.

“We said we are going back to the trenches if the courts had dismissed our case. The judge has exercised judicial independence and come out on the side of the people. You can’t compromise security in the name of democracy,” said Odinga.

Had the entire legislation been suspended, it would have voided President Kenyatta’s signature on the new law and in essence provided the Opposition with more arsenal as the case proceeds for the main hearing.

The petitioners will first have to overcome another hurdle after the judge declined to rule on a prayer by the state to put the court’s orders on hold pending appeal. Justice Odunga instead referred the matter to the Bench to be constituted by the Chief Justice. This means that the orders granted by the court could be lifted if the State succeeds in its appeal.

The State’s prayer for a stay of the ruling is the latest indication that the case could drag on and it could eventually end up at the Supreme Court.

The State had objected to the case on grounds that the chaos that had greeted the passage of the Bill had been caused by CORD members.

DANCE AND CELEBRATION

The State also objected to another contention by Cord that the Senate had not been involved in the passage of the Bill.

There was dance and celebration immediately the judge finished delivering the two-hour ruling. CORD leaders retreated to the Advocates Common Room within the High Court before returning to address the press.

The judge’s ruling does not foreclose the possibility of the petition being thrown out by the Bench. It, however, provides the Opposition political reprieve, especially after the last week’s double loss during which the Senate also declined to discuss the Bill.

In granting conservatory orders, courts normally consider if the matter raises substantial grounds of public interest or if the issue before the court has not been determined by a superior court, such as the Supreme Court.

On the clause that gives the NIS powers to deal with terrorism, the court ruled that there is need for further judicial inquiry on its constitutionality.