The government Friday suffered a major blow in its attempt to enforce tough security laws after the Court of Appeal refused to reinstate suspended clauses.
The three-judge bench ruled that it would not be in the public interest to enact a law that will violate the very rights the State is seeking to protect.
Their ruling hands a major victory to the opposition Cord and human rights groups which are opposed the proposals.
This followed a request by the Attorney General and the Director of Public Prosecutions for the eight clauses to be reinstated while a case against the disputed laws is heard.
“When amending any law that touches on national security, Parliament must ensure there is no violation of human rights which is part of that national security,” justices Daniel Musinga, Patrick Kiage and Agnes Murgor ruled.
They said human rights are part of Kenya’s democratic process and not even the State can remove them.
The judges dismissed AG Githu Muigai’s appeal, ruling that the balance of convenience favours the public who will suffer most if the laws violate their rights.
“When the government appeals against a ruling, it is assumed it does so in the interest of the public. It is not however in the interest of the public to enact a law that will violate the very public rights the State is seeking to protect,” ruled the judges.
Although the judges said the AG’s appeal was arguable, they were not convinced enough to reinstate the laws only based on alleged threats to Kenya’s security by terrorists.
They dismissed Prof Muigai and DPP Keriako Tobiko’s arguments that suspension of the clauses had hampered the fight against terrorism, ruling that Kenya has sufficient laws to deal with insecurity.
“They did not demonstrate that suspending the clauses had created a great vacuum in the law. Apart from the eight sections, other clauses are operational including other laws which have been used to fight insecurity. Security agents can still use existing laws to protect citizens,” ruled the judges.
SECOND VICTORY
Their decision was a second victory for the Coalition for Reforms and Democracy (Cord) and human rights organizations who are challenging the constitutionality of the Security Laws (Amendment) Act 2014.
“The Court of Appeal has reaffirmed that there is no instrument above the Constitution, not even public interest. It also affirms our position that suspending parts of the law will not make the country vulnerable to terrorism,” said Cord’s lawyer James Orengo.
The judges, in their ruling, said the Constitution is the supreme law and no other statute or Act of Parliament purporting to protect the rights of citizens can be above it.
“National security is subject to the authority of the Constitution and human rights. When amending any law that touches on national security, Parliament must ensure there is no violation of human rights which is part of that national security,” ruled the judges.
According to the judges, human rights are part of Kenya’s democratic process and that not even the State or any other authority can take away those rights through any law.
“Although the AG has the right to appeal against the High Court decision, we are not satisfied that failing to reinstate the suspended clauses will make his appeal useless. The court must also consider where public interest lies,” ruled the judges.
The judges said although they appreciate the threat of insecurity, their mandate is to exercise justice when even a small example is cited to show potential violation of human rights.
Justice George Odunga suspended the clauses on January 2 following petitions by Cord and Kenya National Commission on Human Rights.
Among sections suspended were those giving power to the National Intelligence Service to carry out special operations on terror suspects and punishments for media houses for publishing materials deemed to be either encouraging or inducing terror attacks.
Clauses giving police the power to detain terror suspects for up to a year and the one limiting the number of refugees in the country.
