No pushover: Buoyed by reform, unfazed by threats

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By David Wanjala

The Judiciary has yet again, in a judgment on the petition challenging the constitutionality of the Security Laws (Amendment) Act 2014, stood up to an oppressive Executive and the arrogant Legislature in a way that will go a long way towards asserting its independence in the coy relationship with the other two arms of government.

The judgment, which declared unconstitutional seven clauses of the Act deemed offensive by the petitioners, puts the President on the spot for the umpteenth time, just two years into his ruling. It also leaves an egg on the face of the Speaker of the National Assembly for as many times.

Coming hot on the heels of yet another monumental High Court judgment that declared the CDF Act unconstitutional thus sending members of the National Assembly, including their Speaker into panic mode, the five-member bench has proved that the Judiciary is, indeed, the last line of defence in this new, robust constitutional dispensation whose course the Executive and the Legislature, left unchecked, would eagerly alter.

The Security Laws (Amendment) Act was acrimoniously passed in a cordoned off National Assembly on December 18 last year amidst protests by law, human rights and media experts and other stakeholders. Their hue and cry fell on the deaf ears; the Executive was determined to have the laws passed. The President took the earliest opportunity to sign the Bill into law hardly 12 hours after its chaotic passing in the National Assembly and in total disregard of calls on him to delay the ascent for offensive clauses to be ironed out. It came into force on December 22, 2014.

In the consolidated petition, Coalition for Reform and Democracy (Cord) and Kenya National Commission on Human Rights challenged the constitutionality of the Security Laws (Amendment) Act 2014, which amended 22 other Acts of Parliament concerned with matters of national Security.

The five-member bench comprising Isaac Lenaola, Mumbi Ngungi, Hillary Chemitei, Hedwig Ong’udi and Joseph Onguto identified four issues for determination, among them whether the process of enactment of the laws was in violation of the Constitution and; whether the laws were unconstitutional for violation of the right to freedom of expression and the right to freedom of the media guaranteed under Articles 33 and 34; the right to privacy under Article 31; the rights of an arrested person under Article 49; and the right to fair trial under Article 50. 

 

Violated basic freedoms

The bench was also to consider whether the provisions of the Act were unconstitutional for violating the provisions of Articles 238, 242 and 245 of the Constitution with regard to national security, appointment and tenure of office of the Inspector-General of Police, creation of the National Police Service Board and the appointment and tenure of National Intelligence Service Director-General and the Deputy Inspector-General of Police. 

On the question of the process of enactment, the court found, among others, that there was reasonable public participation, that there was no violation of Standing Orders of the National Assembly in regard to the chaotic manner in which the laws were passed, and that the presidential assent to the Bill was constitutional.

However, the Court found and declared unconstitutional Sections 12 of the Security Law (Amendment) Act and Section 66A of the Penal Code for violating the freedom of expression and media, guaranteed under Articles 33 and 34 of the Constitution; 34 in so far as it includes telescopes in Section 2 of the Firearms Act; 16 and 42A of Criminal Procedure Code for violating the right of an accused person to be informed in advance of the evidence the prosecution intends to rely on as provided under Article 50(2)(j) of the Constitution; and 20, which amended Section 364A of the Criminal Procedure Code for being in conflict with the right to be released on bond or bail on reasonable conditions as provided for under Article 49(1)(h) of the Constitution.

The court also found and declared unconstitutional Sections; 26 of the Act which introduced Section 26A into the Evidence Act, for violating the right of an accused person to remain silent during proceedings as guaranteed under Article 50(2) (i) of the Constitution; 48 which introduced Section 18A to the Refugee Act, 2006 for violating the principle of non-refoulment as recognised under the 1951 United Nations Convention on the Status of Refugees which is part of the laws of Kenya by dint of Article 2(5) and (6) of the Constitution; and 95 which introduced Section 95A to the National Police Service Act and created the National Police Service Board for violating Article 246(3) of the Constitution. 

The clauses, the judges said, were a violation of fundamental human rights and did not add value to the fight against terrorism since there were sufficient laws, which, if managed well, could secure the country from terror attacks.

The judgment dots yet another spot on President Kenyatta’s reputation as sitting President for being overruled by courts of law the most in as many years. Senate, in November 2013, sought and obtained a favourable advisory opinion from the Supreme Court against the Division of Revenue Bill assented to by the President without its input.

In November 2013, the National Assembly discussed and adopted the report of the Justice and Legal Affairs Committee recommending that the President appoint a tribunal to investigate six members of the Judicial Service Commission (JSC), in total disregard of a High Court order barring them from doing so. The President heeded Parliament’s recommendation in a move that turned out to be his greatest embarrassment as the courts declared the tribunal null and void.

The other tussle between the Judiciary and the Executive has been in the hiring of new judges. The Judicial Service Commission set out to hire 40 judges of the High Court nearly two years ago. It got only 25 candidates from the list of 76 shortlisted applicants. Only a year later did the President appoint 11 from the list of 25 names forwarded to him, saying that his office was in the process of vetting the remaining names for approval. The President has not yet appointed the remaining 14 almost two years on as the Judiciary struggles with a backlog of cases. This has brought a quiet tussle between the office of the President and the JSC on which role each should play in the process of appointing judges.

Clearly, the Judiciary will stop at nothing to assert itself as an independent institution, especially from the longstanding pre-new constitution grip of the Executive and by extension, the Legislature. It is independence so cherished in the Judiciary, not just against emasculation by the other arms of government but that is also seen to percolate within the institution. 

From the time he interviewed with the JSC for the position of Chief Justice, Dr Mutunga promised to never interfere with the work of judges or courts by way of placing calls on ongoing cases. He promised to let courts and judges work independently and give chance to known mechanisms – appeals and judicial reviews – to check the work of courts and judges.

He was to reiterate this four years into his tenure at the helm of the Judiciary when he addressed East African Magistrates’ and Judges Association in Nairobi in November 2014 thus; “The Judiciary will remain alive to the fact that for there to be success in the administration of justice, there has to be robust independence and constructive inter-dependence with other arms of government.”

 

Indeed, judges and various courts, buoyed not only by the ongoing reform in the Judiciary and a solid Constitution behind them, as well as by a very independent minded leader, are increasingly churning bold judgments even in the face of heightened pressure from the Executive and Legislature. This is a path hitherto not taken by the courts. No wonder politicians are irked to the extent they almost run amok when the Constitution, and not them, is made the point of reference in matters before the courts. 

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