AG appeals suspension of security laws clauses

January 6, 2015 2:52 pm
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The AG argues that the Judge did not have jurisdiction to suspend sections of the controversial laws, in a case filed by members of the Opposition CORD. Photo/FILE.
The AG argues that the Judge did not have jurisdiction to suspend sections of the controversial laws, in a case filed by members of the Opposition CORD. Photo/FILE.
NAIROBI, Kenya Jan 6 – Attorney General Githu Muigai has filed an appeal against the suspension of 8 clauses in security laws, arguing that the High Court did not have jurisdiction over the matter.

The application seeking to reverse the order by Justice George Odunga was filed on Tuesday afternoon under a certificate of urgency.

The AG argues that the Judge did not have jurisdiction to suspend sections of the controversial laws, in a case filed by members of the Opposition CORD.

He now wants the Appellate Court to overturn the decision, arguing that the judge did not have jurisdiction to suspend the legislations at an interlocutory stage.

“The learned Judge of the High Court erred in law and in fact in failing to find that a proper and wholistic interpretation of Article 23 of the constitution does not envisage conservatory orders in respect of legislation but that the only redress the court may issue is to declare if merited, the invalidity of any law as a final determination in proceedings,” the states in his appeal.

He also faulted the judge for failing to find that the court had no jurisdiction to suspend legislation at an interlocutory stage.

“He failed to appreciate that there was not sufficient material evidence on the record to warrant the granting of the prayers of stay or suspension of the law,” Muigai states, adding that the judge had erred in law and in fact in “failing to find that mere apprehension by the petitioners was insufficient to warrant the granting of the prayers for suspension sought.”

Here are the rest of his submissions filed at the appellate court:

• THE judge erred in law and in fact in suspending parts of the Act legislation without a rebuttal of its constitutionality.

• THE Learned Judge of the High Court erred in law and in fact in failing to hold that in the circumstances of the case the operation of the law could only be stayed or suspended after sufficient proof at the hearing of the substantive petition.

• THE Learned Judge of the High Court erred in law and in fact in failing to uphold the doctrine of presumption of Constitutionality of the law till the same was proved to be unconstitutional.

• THE Learned Judge of the High Court erred in law and in fact and he contradicted himself in that whilst the challenge to the entire Act before him was premised on an allegedly flawed and unconstitutional process, he consequently suspended only certain sections of the same Act.

• THE Learned Judge of the High Court erred in law and in fact in failing to determine the application for certification of the Notices of Motion under Article 165(4) of the Constitution separately and in priority to the determination of the motions on their merits whereby his omission to do so gravely prejudiced the appellant.

• THE Learned Judge of the High Court erred in law and in fact in failing to find that the National Assembly having complied with the provisions of Article 24(2) of the constitution, and having built into the suspended clauses mechanisms to safeguard the bill of rights, the provisions that he suspended were not a danger to the bill of rights and that there were no strong and cogent reasons to warrant the issuing of a suspension order.

• THE Learned Judge of the High Court erred in law and in fact in failing to find that due to the fact that the suspended clauses were not in breach of Article 25 of the constitution the Act was not on the face of it unconstitutional and any stay or suspension orders if merited, had to await a discussion of the merits of limitations at the hearing of the substantive petition.

• THE Learned Judge of the High Court erred in law and in fact in failing to refer the matter to the Hon the Chief Justice for the Constitution of a bench to hear the applications for conservatory orders of stay or suspension of the law.

• THE Learned Judge of the High Court erred in law and in fact in failing to appreciate the fact that the National Assembly in exercise of its power to legislate was presumed to be possessed of the knowledge of facts relating to the gravity of the security situation in the country that warranted the enactment of the law which material the court did not have the benefit of to arrive at the orders of stay.

• THE Learned Judge of the High Court acted against the constitutional order in that in granting the stay of the operation of the law he gave orders that were in breach of the doctrine of separation of powers.

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