By VINCENT AGOYA
The High Court has suspended sections of the contested security laws, pending a determination on their constitutionality.
Justice George Odunga on Friday upheld preliminary objections against the amendments passed by the National Assembly on December 18.
Appearing to exert judiciary’s independent supreme authority over Parliament, the court shelved eight clauses in the contentious Bill, which will then be subjected to closer scrutiny.
This will be done once the Chief Justice constitutes a bench of not less than three judges for the hearing and determination of the petition.
Justice Odunga concurred that there was need to suspend the laws temporarily and subject them to further scrutiny in respect to the contentious issues raised in the petition by the Coalition for Reforms and Democracy (Cord) and the Kenya National Human Rights Commission (KNCHR), which sought an annulment of the entire Act.
Cord and KNHRC had argued that with the advent of the new law, the country was at risk of reverting to the dark days of torture, dictatorship and gagging of the media.
The Security Bill was passed by the National Assembly after a debate marred by chaos pitting Jubilee MPs and opposition MPs.
The President later signed the Bill into law despite the acrimony, stating it was for the good of the country to stem the rising tide of terrorism.
On Friday, the judge ruled that the sovereignty of the country stemmed from the people and that the arms of government only exercise “delegated authority which is protected by the constitution.”
He stated that all state organs must bow to the will of the people.
He said that in passing laws, Parliament must filter them through the sieve of constitutionalism, including those meant to protect the security of the nation.
The judge in his ruling equally restated the authority of the Senate in terms of the oversight role in security matters, which the new law attempted to remove.
Justice Odunga, in suspending the eight clauses, also stayed “covert operations” by security agents which the petitioners argued may have compromised and undermined the Bill of Rights, reaffirming that the rights to a fair trial must be jealously protected by the courts.
Falling short of suspending the entire Act, the judge also took a swipe at the flawed manner in which the Bill was passed on December 18 2014 stating that the entire process may have been prejudiced “as strangers” may have been amongst those who voted in support.
He said this allegation needed a further interrogation.
The judge also upheld that the provision that was going to limit the number of refugees to 150,000 goes against the International Law, of which the country is a signatory.
The sections that were suspended included sections, 12, 16, 26, 29, 48,56,58,64 of the Security Laws (Amendment) Act 2014.
There have been apprehensions that Section 56 and Section 64 of the Act were inconsistent with the criminal justice system and may have been rife with mischief and transgressions to targeted parties.
The two amended sections had handed security agencies with overarching powers to crack down on perceived terror suspects including holding suspects for over 90 days without trial.
The law also threatened the freedom of the media in reporting terror related stories, with accompanying penalties of up to three years in jail and additional fines of Sh5 million if reports are seen to “undermine investigations and security operations relating to terrorism.”
Section 26, which dealt with the Evidence Act as amended, would violate the constitutional rights of accused persons to a fair trial, according to the petitioners.
The new law wanted evidence withheld from accused persons “as they may interfere with witness” and only disclosed at the onset of trial.
Section 58 of the Security law would have impugned on the rights of individuals privacy as it would have empowered the National Intelligence Service to tap conversations, investigate bank accounts amongst other sweeping powers without a prerequisite court order.
Section 12 and 16, according to the petition was meant to limit the rights to fair trial and was seen as unreasonable to the extent that it denied an accused person adequate time and facilities to prepare a defence. “The right to a fair trial cannot be limited…” the judge observed.
He added that the issue of public participation was also questionable as the petitioners had hinted that no meaningful debate was realised in the time constrained process that saw the Bill signed into law.
“The constitution values public participation in a process such as this one,” he said.
The judge, however, clarified that in issuing the conservatory order he had not interrogated the constitutionality of the clauses, and should it be proven otherwise at a later stage in the full hearing of the petition, then there would be no contradictions if they are so declared.
He said other sections that had raised concern posed no immediate threats to warrant similar orders.
“Our country has been the victim of an undeclared war and we need new techniques and laws to eradicate the menace,” the judge said.
He said any rightful thinking Kenyan must support all “lawful” steps taken to fight terrorism.