NAIROBI, Kenya, Jan 2 – The High Court on Friday temporarily suspended enforcement of eight clauses in the controversial Security Laws (Amendment) Act of 2014.
The court suspended clauses 12, 16, 26, 29, 48, 56, 58 and 64 pending hearing of the case by the Coalition for Reforms and Democracy (CORD) and human rights lobbyists.
Justice George Odunga agreed that sections of the new Act raised questions of human rights violations.
On clause 12 of the Act, Odunga noted that it “introduces a clause that limits the freedom of expression and of the media and imposes a hefty fine of Sh5 million for the offenders or three years imprisonment or both. If implemented, there is imminent danger of offenders losing their liberty.”
Clause 64 introduces an offence of publication of offending material which is defined as publication of a statement that is likely to be understood directly or indirectly “encouraging or introducing another person to commit or prepare to commit an act of terrorism.”
On this clause, Odunga stated that: “terrorism is a serious problem in the country and every Kenyan of goodwill must support all the lawful steps being taken by the Government to contain the terrorism menace in this country. The Government is obliged to take all lawful measures to stop all acts of terrorism… such moves however must pass the constitutional and legal muster.”
Odunga said provisions contained under the penal code are oppressive and are inconsistent with the Constitution, saying the State should not withhold the evidence of an accused person until the hearing, as per clause 16.
The judge found the new regulation relating to limiting the number of refugees in the country discriminative in nature, and inconsistent with international instruments and treaties to which Kenya is signatory.
Clause 48 introduces a ceiling on the number of refugees and asylum seekers in the country.
Justice Odunga upheld the position of the United Nations Refugee Convention and Protocol that relates to protection and non-discrimination of refugees allowed to seek asylum without necessarily limiting their numbers as the case under the new law.
“In the respect the amendment limiting the numbers of refugees to a maximum of 150,000 unless increased by Parliament… such amendments contravene the international conventions and instruments,” he stated.
The National Intelligence Services will also not interfere with the privacy of individuals as proposed under clause 56.
The judge ruled that the application filed by CORD and the lobbyists be placed before Chief Justice Willy Mutunga to appoint a bench to hear the main petition within a reasonable period.
The court declined to stay its orders on the eight sections as sought by the Attorney General, saying he should make such an application before the full bench.
During the hearing of the application for the conservatory order, the Director of Public Prosecutions Keriako Tobiko told court that a series of criminal attacks which have been witnessed in last three years in several parts of the country called for establishment of stringent laws.
The Attorney General through Solicitor General Njee Muturi submitted that due process was followed during the passing of the Security Act.
He stated that withholding evidence until a suspect is put on trial under the new Act is meant to protect witnesses from harassment as provided by clause 16.
The court heard that there have been more than 100 attacks on innocent people since 2011, which has prompted the government to come up with the new laws.
CORD through senior counsel James Orengo told the court that the law as passed, contravened the Constitution and the same cannot be presumed to be a good law.
He argued that the Speaker of the National Assembly contravened the Constitution by failing to refer the Bill to the Senate.
The law amended several provisions of the Public Order Act (Cap 5), Penal Code, Extradition, Criminal Procedure Code, Registration of Persons, Evidence, Firearms and Rent Restriction Acts among others.
Odunga’s ruling was met with jubilation from the CORD leaders and supporters who termed it as historic and a reason for Kenyans to celebrate the New Year.
CORD leader Raila Odinga said the ruling has now set grounds for the suspension of the entire law once the petition proceeds to full hearing.
“We can now see light again… everybody actually feared that we were going back to those dark days of torture and dictatorship,” he stated.
“What has been done today is very historic; in protecting Kenyans, you have also to protect their democratic rights.”
He added that, “this confirms that Kenya needs to be rescued. We are going to re-launch the Okoa Kenya initiative.”
“The so called tyranny of numbers in Parliament is a sham. We have the tyranny of brains and of the people.”
His co-principal, Bungoma Senator Moses Wetangula also applauded the ruling while vowing to ensure the government adheres to the requirements of the Constitution without fail.