The government has five days to file its defence to a petition by Cord seeking to suspend the controversial new security laws.
For
the second time, Mr Justice Isaac Lenaola declined to issue temporary
orders stopping the implementation of the anti-terror laws, insisting he
must get a response from the government before granting any orders.
“It
is obvious a ruling is required on whether to suspend new laws but a
formal response from the government is also necessary before a decision
is made. I therefore direct the respondents to burn the midnight oil and
file their response before hearing on December 29,” ruled Justice
Lenaola.
Failure to grant the conservatory orders makes
the new law operational, with anyone intending to hold a public
gathering now required to get the permission of the Cabinet Secretary
in-charge of security.
Publishers too will have to get
permission from the police before publishing pictures of a terrorism act
or else they face court action and up to Sh5 million in fines.
The
National Intelligence Service now has the powers to arrest Criminal
suspects. Officials who help suspected terrorists enter Kenya will also
be prosecuted. Director of Registration has also been granted the power
to revoke an identification card.
A fierce legal battle
is expected on Monday during the hearing after the Director of Public
Prosecutions, Mr Keriako Tobiko, was enjoined as an interested party in
the petition.
Mr Tobiko came to court in person seeking to be enjoined, unlike in other cases when he sends his deputies.
The
government sent Solicitor-General Njee Muturi. Both Mr Tobiko and Mr
Muturi objected to granting of interim orders, saying they required time
to put up their responses.
“We will oppose granting of
any conservatory orders at this stage. The petition is based on
presumptions of unconstitutionality which has not been proved and need
to be determined by at least a bench of three judges,” said Mr Tobiko.
Meanwhile,
Justice Lenaola allowed consolidation of Cord’s petition with that of
Kenya National Commission on Human Rights (KNCHR) on the basis they have
raised the same issues.
Cord is unhappy with over 10
clauses in the Security Laws (Amendment Act) 2014 which it claims are
unconstitutional. The coalition has cited the chaotic manner in which
the laws were passed, lack of public participation and failure to
involve the Senate in discussing the Bill as other grounds for the
suspension.
PUBLIC PARTICIPATION
KNCHR
argues that the Act lacked public participation. The commission also
invalidates the laws due to what it terms as misconduct of the MPs
during its passage as well as failure to involve the Senate.
The
commission accuses the National Assembly of failing to facilitate
meaningful engagement of the public before passing the law.
“The
tight time lines given by the departmental Committee on Administration
and National Security for making submissions combined with the
difficulty in accessing the Bill, the length and complexity of the Bill
limited participation which make it unconstitutional,” said KNCHR lawyer
Demas Kiprono.
Mr Kiprono said the amendments made to
the Act had far reaching consequences and should not have been brought
through a miscellaneous amendment process.
KNHCR wants a declaration that the processes failed to meet the constitutional requirements.
Cord
says the reasons given by the government for rushing the law through
the National Assembly were misleading, fallacious and intended to cheat
the public the law was to protect the country from terrorism.
“The
amendments are not minor but extensive and intended to overhaul the
structures and operations of the security organs, the objects and
principles of Kenya criminal justice system and the application and
compliance with the Bill of Rights,” said Cord’s lawyer James Orengo.
Cord
alleges that strangers including officers from the office of the
Serjeant-at-Arms, security officers and the Speaker voted on the Bill.
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