, NAIROBI, Kenya, Jan 23 – The Court of Appeal on Friday upheld the High Court decision to suspend eight clauses of the new security act.
A three judge bench led by Justice Daniel Musinga found that the suspension of the eight clauses created no vacuum in law and would not hamper the efforts of security agents to secure the Kenyan citizenry.
“Apart from the eight sections whose operationalisation has been temporarily suspended, all other laws of Kenya are still in full operation. We entertain no doubt that as we await either the hearing of the appeal before this court or the finalisation of the petitions before the high court, the country’s security agents and law enforcement organs can still make full use of the existing laws to keep the country and its people safe,” they found.
Attorney General Githu Muigai, the appealant, had argued before the court that such a decision would rendered any appeal he planned to lodge, nugatory.
In declining the Attorney General’s prayers to overturn the High Court’s conservatory orders against the new security act, the Appeals court was in agreement with Justice George Odunga’s finding that any law that threatened the Bill of Rights cannot be left to stand even for a little while as legal arguments are made, heard and determined.
“It must always be born in mind, that the rights and fundamental freedoms in the Bill of Rights are not granted by the state and therefore the state and or any of its organs cannot purport to make any law or policy that deliberately or otherwise takes away any of them or limits their enjoyment except as permitted by the Constitution,” Musinga explained.
The Attorney General had argued that the High Court acted pre-emptively in suspending the clauses before a full hearing of the petition challenging the new security law.
He was also of the opinion that a single High Court judge should not have arrived at such a decision by himself and that a bench of at least three juges should have been constituted to deliberate on such a weighty matter as national security.