, NAIROBI, Kenya, Jan 12 – The Court of Appeal is set to determine an application by the State challenging the suspension of eight clauses of the Security Laws (Amendment) Act by High Court judge George Odunga.
While presenting his argument before a three-judge bench comprising Justices Patrick Kiage, Agnes Murgor and Daniel Musinga, Attorney General Githu Muigai proposed stay of orders by Justice Odunga saying the ruling would affect the dispensation of Justice and that the Judge failed to consider the terrorist threat the country was facing and which the new law was meant to contain.
“My Lords, we must remain focused–that is why the public have a healthy contempt of the courts, because when the village is burning, lawyers are busy arguing which bucket will be used to put water to put out the fire,” the Attorney General quipped.
While dismissing some of the arguments brought forward by lawyers representing the CORD coalition led by Senior Counsel James Orengo, Muigai urged the Court of Appeal to deal with the substance of the case as opposed to technicalities as presented by CORD.
His sentiments were reiterated by Paul Nyamodi representing the Commission for the Implementation of the Constitution who urged the other parties to consider the threat of terrorism and the damages it had and allow the law to take effect.
“Our Constitution is a versatile one which responds to situations as they demand–whereas terrorism is not a concept in our Constitution, the court should consider it a threat as it presents a situation where the victims are tortured—so terrorism can be simply defined as torture,” said Nyamodi.
In his argument, Orengo had termed the appeal defective because it was filed out of time and served on them late in contravention of the law.
The Senior Counsel had also stated that the appeal was also improperly filed adding that the Attorney General had failed to demonstrate what prejudice the State would suffer if the suspension was upheld, and issue the AG later responded to.
In Orengo’s defence, Senior Counsel John Khaminwa urged the three judges to uphold the ruling by Judge Odunga saying the country did not need any additional law as the current was sufficient.
“There is no vacuum, we do not need additional law, we can use the penal code and the criminal law– there is no state of emergency, the country is not under siege that notwithstanding the calamities, in Lamu, and Mandera,” he posed.
“We are under mandatory duties to uphold the Bill of Rights, the courts must move to ensure this is done, and this what Odunga had done,” added Khaminwa.
Justice Odunga had in early January suspended eight sections (12, 16, 26, 29, 48, 56, 58, and 64) of the Security Act pending a determination on their constitutionality after the Coalition for Reforms and Democracy (CORD) and the Kenya National Commission on Human Rights (KNCHR) filed a petition seeking the annulment of the law in its entirety.
The Court of Appeal will issue its ruling on January 23.