NAIROBI, Kenya, Feb 14 – Justice Mumbi Ngugi has declined to grant an injunction on the use of the breathalyser (alcoblow) pending the hearing of a petition that seeks to have it declared illegal.
When making her ruling on Friday, Ngugi said the breathalyser has saved lives and as the petitioner had not given valid reasons for the suspension of its use, it remains in force.
The petition filed by motorist Richard Dickson Ogendo through his lawyer Gitobu Imanyara will however be heard in full beginning March 10.
In the petition Ogendo contests that Legal Notice 138 of 2011, through which the breathalyser came into force, was never tabled before Parliament making the use of the alcoblow illegal.
“The petitioner has perused Parliamentary Hansard and has not found any evidence of the Rules or their drafts having been tabled before the National Assembly,” the petitioner avers.
The petitioner also contends that its re-introduction on December 16 runs in the face of Article 10(1) (b) of the Constitution as the public was not engaged by the Ministry of Transport and Infrastructure.
“Article 10(1) (b) of the Constitution which inter-alia requires that all State organs, State officers, public officers and all persons whenever any of them enacts, applies or interprets any law be bound by the National Values and principles of governance in Article 10(2) (a) including participation of the people,” the petition reads.
The other provision of the law Ogendo says was violated by the reintroduction of the alcoblow is Article 49(d) which states:
“An arrested person has the right not to be compelled to make any confession or admission that could be used in evidence against the person.”
Ogendo has also resurrected the hygiene argument that had the use of the alcoblow outlawed by the High Court in 2006.
“The rules as published do not provide for the disposable mouth piece to be handed over to the person in respect of whom they have been used and hence the chances for their re-use by another person are not eliminated,” Ogendo’s petition states.
He has also taken issue with the way the alcoblow has been implemented for the reason that drivers are forced out of their cars for testing and in some instances in the full glare of cameras.
“Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected,” the petition quotes.
The Cabinet Secretary for Transport, Engineer Michael Kamau, however contends that his ministry was acting within its constitutional mandate when it reintroduced the devices and would be abdicating its duty to ensure the safety of Kenyans if it didn’t.