Coalition for Reforms and Development (CORD) & 2 others v Republic of Kenya & another (Civil Appeal 188 of 2015) [2024] KECA 1955 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1955 (KLR)
Republic of Kenya
Civil Appeal 188 of 2015
MSA Makhandia, F Tuiyott, P Nyamweya, GW Ngenye-Macharia & PM Gachoka, JJA
December 20, 2024
Between
Coalition for Reforms and Development (CORD)
1st Appellant
Katiba Institute
2nd Appellant
Article: 19 Global Campaign For Free Expression
3rd Appellant
and
Republic of Kenya
1st Respondent
Attorney General
2nd Respondent
(An appeal against the Judgment and Decree of the High Court of Kenya at Nairobi (I. Lenaola, M. Ngugi, H. Ong’udi, H. Chemitei & J. I. Onguto, JJ.) delivered on 23rd February, 2015 in Consolidated Petitions No. 628 of 2014, 630 of 2014 & 12 of 2015
Petition 628, 630 of 2014
)
Judgment
1.The genesis of this appeal is a determination by the High Court of consolidated Petitions Nos. 628 of 2014, 630 of 2014 & 12 of 2015 on 23rd February 2015. The petitioners therein challenged the constitutionality of, inter alia, the process, enactment, coming into force and the substance therewith of the Security Laws (Amendment) Act, 2014 (The SLAA). The 1st petition, being Petition No. 628 of 2014, was filed by the Coalition for Reforms and Development (CORD), which described itself as a coalition of political parties comprised of the Orange Democratic Movement, the Wiper Democratic Movement and the Forum for Restoration of Democracy (FORD) registered under the Political Parties Act.
2.The 2nd petition, Petition No. 630 of 2014 was filed by Kenya National Human Rights Commission (KNHCR); a creature of Article 59 of the Constitution and established through the Kenya National Commission on Human Rights Act. It is the State’s lead agency in the promotion and protection of human rights. It suffices to state that it is not a party in this appeal. Equally, the 3rd petition, Petition No. 12 of 2015 was filed by one Samuel Njuguna Ng’ang’a, an advocate of the High Court of Kenya. He is not a party in this appeal.
3.The respondents and the interested parties in the 1st petition were the same in the 2nd and 3rd petitions. The 1st respondent is the Republic of Kenya established under Chapter 2 and Article 4 of the Constitution. It is however not clear why it was enjoined as a party alongside the 2nd respondent. The 2nd respondent is the principal legal advisor to the Government. He is authorized by law to represent the national government in court or in any other legal proceeding to which the national government is a party as set out in Article 156 (4) of the Constitution. Against this background, there was therefore no need to join the 1st respondent in the proceedings. Various interested parties were joined in the petitions, who included Katiba Institute and Article 19: Global Campaign for Free Expression, who were the 4th interested party and 6th Interested party respectively in the petitions.
4.In sum, the petitioners in the High Court questioned whether the National Assembly acted ultra vires and unreasonably when the Security Laws (Amendment) Bill, 2014 was presented to the President for his assent. The petitioners further complained that the process lacked integrity, was flawed, irrational and unconstitutional absent a constitutionally inspired public participation process, and hence the whole Act ought to be declared a nullity.
5.A five-judge bench (I. Lenaola (as he then was), M. Ngugi (as she then was), H. Ong’udi, H. Chemitei & J. I. Onguto, JJ.) was constituted by the Chief Justice to hear the petitions, upon making an order for consolidation of the petitions, proceeded and heard the petitions on their merits. The court considered the petition by way of oral and written submissions and examined the documents presented before it by the parties. The learned judges rendered their decision on 23rd February 2015 by partially allowing the petition in the following terms:a.Section 12 of the Security Laws (Amendment) Act and Section 66A of the Penal Code are hereby declared unconstitutional for violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution.b.Section 64 of Security Laws (Amendment) Act which introduced Sections 30A and 30F to the Prevention of Terrorism Act is hereby declared unconstitutional for violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution.c.Section 34 of the Security Laws (Amendment) Act is hereby declared unconstitutional in so far as it includes “telescopes” in Section 2 of the Firearms Act.d.Section 16 of the Security Laws (Amendment) Act and Section 42A of Criminal Procedure Code are hereby declared unconstitutional as they violate 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.e.Section 20 of the Security Laws (Amendment) Act which amended Section 364A of the Criminal Procedure Code is hereby declared unconstitutional 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.f.Section 26 of the Security Laws (Amendment) Act which introduced Section 26A into the Evidence Act is hereby declared unconstitutional for violating the right of an accused person to remain silent during proceedings as guaranteed under Article 50(2) (i) of the Constitution.g.Section 48 of the Security Laws (Amendment) Act which introduced Section 18A to the Refugee Act, 2006 is hereby declared unconstitutional for violating the principle of non-refoulment as recognized 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.h.Section 95 of the Security Laws (Amendment) Act which introduced Section 95A to the National Police Service Act and created the National Police Service Board is hereby declared unconstitutional for violating Article 246(3) of the Constitution.
6.The court dismissed the other prayers sought in the consolidated petitions. It is that dismissal that precipitated the filing of this appeal by CORD, Katiba Institute and Article 19: Global Campaign for Free Expression; the 1st, 2nd and 3rd appellants herein respectively. They preferred separate appeals before this Court. They however, subsequently filed a joint memorandum of appeal dated 20th July, 2015. They raised 20 grounds impugning the judgment of the High Court. We have taken the liberty to condense them into the following: that the learned Judges erroneously found that only 8 clauses of the Act, and not the entire Act, were unconstitutional; that the trial court erred in finding that the public participation process conformed to the requirements set out in the Constitution; that the Bill was fatally defective in form and substance and flagrantly misled the public; that the Bill did not comply with Standing Order No. 38 (2) and 127; that the trial court erred in finding that matters of national security were not within the parameters of Article 238 (2)(a) of the Constitution as to compulsorily have such matters debated upon by the Senate and the National Assembly; that the two Speakers of both Houses were not concurrently consulted in accordance with Article 110 (3) and Standing Order No. 122; that the High Court failed to find that the debate leading up to the enactment of the Act violated Standing Orders No. 83, 98, 104, 107, 112, 117, 118 and 119 for lacking decorum, control and orderly conduct on the strength of the electronic video evidence; that the Hansard of the National Assembly relied upon did not paint a true picture of the chaotic, violent and riotous proceedings and was therefore not reliable; that the electronic video evidence was not considered holistically in the spirit of expediency and saving judicial time; that by finding that it couldn’t supervise the workings of Parliament, the High Court allowed Parliament to act with impunity by violating its Standing Orders; that the learned Judges failed to give a purposive and holistic interpretation of Article 24 of the Constitution; that in finding Section 86 of the Act as constitutional, the trial court failed to appreciate the historical motivation behind the creation of the office of the Inspector General of the National Police Service; that the learned Judges failed to appreciate that Section 12 of the National Police Service Act complied with Article 232 (1) (g) of the Constitution and did not therefore need amendment; that the High Court failed to comprehensively address whether Sections 13, 14, 62 and 93 of the Act contravened Article 29 and 50 of the Constitution; that the trial court improperly failed to find that Sections 15 and 66 of the Act were unconstitutional; that the effect of upholding Section 69 of the Act was to promote unbridled mass surveillance without due process or prior justification amounting to a breach of the right to privacy; that Section 56 of the Act as upheld is vague and exposes individuals to illegal detention and infringement of their right to dignity and privacy and; and that the effect of upholding Section 47 of the Act was to violate refugees’ right to movement guaranteed under Article 39 of the Constitution, the Refugee Convention of 1951 and the OAU Refugee Convention of 1969.
7.In view of the foregoing, the appellants sought the following reliefs which are hereby reproduced verbatim:a.The appeal be allowed;b.A declaration that the Security Laws (Amendment) Bill 2014 in its entirety was not procedurally debated and passed by the National Assembly in accordance with the Constitution of Kenya, is unconstitutional and is therefore a nullity;c.A declaration that the presidential assent to the Security Laws (Amendment) Bill 2014 was unconstitutional and improper, the National Assembly having failed to comply with Article 110 (3) and (4) of the Constitution and is therefore invalid and therefore null and void;d.A declaration that the Security Laws (Amendment) Bill 2014 was unconstitutional, illegal as the National Assembly failed to comply with mandatory provisions of Articles 10 (2) (a) and 118 of the Constitution of Kenya that call for public participation and is therefore invalid, null and void;e.A declaration that the limitations contained in sections 13, 14, 15, 62, 66, 69 and 93 in the Security Laws (Amendment) Act are not justified in an open and democratic society based on human dignity, equality and freedom, have no rational connection with the objective and extent of the limitation, do not satisfy Article 24 of the Constitution, and are therefore unconstitutional and a nullity;f.A declaration that section 86 of the Security Laws (Amendment) Act 2014 is unconstitutional by removing participation of the National Police Service Commission in the appointment of an Inspector General of Police and is therefore null and void.
8.The abridged facts giving rise to the petitions in the High Court and the present appeal are that on 8th December, 2014, the Security Laws (Amendment) Bill, 2014 (hereafter SLAA) was published in a special issue of the Kenya Gazette Supplement No. 163 (National Assembly Bills No. 39) under the hand of Hon. Asman Kamama, the then Chairman of the National Assembly Committee on Administration and National Security. Come 10th December, 2014, the Clerk of the National Assembly invited members of the public, by way of notice, published in the local dailies, to present their memoranda on the SLAA.
9.According to the pleadings filed by the 1st appellant in the High Court, the said notice violated Article 10 (2) (a) and 118 (1) (b) of the Constitution since the members of public were not afforded adequate opportunity to present any memoranda. This was because the notice was published on the very day the public participation process was supposed to commence. Withal, the public participation process was reduced from 14 days to 1 day.
10.The 1st appellant stated that the notice published in the Nation Newspaper on 10th December, 2014 informed members of the public that the public participation process would take place on 10th, 11th and 15th December, 2014. That instructively, public participation did not take place on 11th December, 2014 as proposed. For these reasons, the public participation process was inadequate and insufficient.
11.It was further indicated that the public meeting, which took place after the Second Reading, started at 11:30 a.m. and not the scheduled time of 9:00 a.m. due to lack of quorum from the parliamentary committee. When the session began, its chair, Hon. Kamama urged participants to be conscious of time and restrict their presentations owing to the delays in commencing the meeting.
12.Discerned from its memorandum of objects and reasons, the Bill sought to amend a raft of statutes. According to the 1st appellant, the Bill’s memorandum of objects and reasons was deceptive and fallacious since the Bill sought to substantively overhaul the structures and operations of the security organs of the Republic of Kenya, the objects and principles of the Kenyan criminal justice system and the application and compliance with the Bill of Rights; contrary to what was stated that its intent was purposed to make minor edits. As such, the public participation process implemented was grossly insufficient since participants were denied ample time to adequately demystify the Bill.
13.Between 8th December, 2014 and 19th December, 2014, after publication, the Bill was introduced to Parliament. It underwent the First and Second readings for consideration by the Committee of the Whole House. The Bill then went through a Third Reading for debate. It was subsequently assented to by the President on 19th December, 2014.
14.The 1st appellant opined that since the public participation process was incomplete when the Bill was tabled for the Second Reading in the National Assembly on 11th December, 2014, there was a contravention of Standing Order No. 127. This is because following a public participation process, the views and recommendations of the public ought to have been documented in the form of a report. However, since the public participation phase was incomplete, that did not take place. The 1st appellant was aware that no such report was presented before the National Assembly.
15.During the course of the debate, Hon. John Mbadi, Hon. Ababu Namwamba and Hon. Junet Mohammed raised that anomaly. However, the Speaker ruled that the public participation process would continue after the Second Reading. In the 1st appellant’s view, that directive was unprocedural.
16.On 18th December, 2014, the Supplementary Order Paper was tabled to present the Bill for the Third Reading. This however only occurred when the House had already commenced the day’s sitting. This, the 1st appellant opined, contravened Standing Order Paper No. 38 (2) which provides that such a paper ought to be made available to members at least one hour before the house meets. It added that the said sitting, though special in its nature, was nonetheless unfair, unprocedural and oppressive for it was limited to that day.
17.During the sitting, members from the opposition party, together with some from the Jubilee coalition, observed that several provisions of the Bill were unconstitutional and needed further consultative meetings in a bipartisan manner. It was further brought to the attention of the Speaker that several communities professing the Islamic faith were discriminated against by some of the clauses in the Bill dealing with terrorism.
18.The 1st appellant took the view that since the Speaker failed to consider those amendments, totaling 100 in number, and allow further deliberations, his conduct was biased. Furthermore, the speaker was accused of being hell-bent on passing the Bill on account of the pressure from the National Executive. It suggested that the proposed 100 amendments needed to undergo extensive debating.
19.The 1st appellant challenged the process as being unconstitutional for the following reasons: that the Bill was not subjected to the mandatory procedural dictates of Article 110 (3) and (4) of the Constitution as the Speakers of both houses did not resolve the issue whether the Bill concerned counties; that it was not referred to the Speaker of the Senate by the Speaker of the National Assembly after it was passed by the National Assembly on 18th December, 2014 and; that the leader of the minority in the Senate requested the Speaker of the Senate to convene a special meeting but that did not take place at all.
20.It recalled that during the proceedings and vote by the Committee of the Whole House of the National Assembly and the Third Reading of the Bill, strangers, comprising officers from the office of Sergeant-at-Arms of the National Assembly and the security personnel assigned to Parliament and the Speaker of the National Assembly, participated and voted on a number of instances. This participation, in the voting exercise, was in flagrant breach of Article 124 (3) of the Constitution.
21.The 1st appellant lamented that during the proceedings, the public and members of the Senate were excluded from witnessing the proceedings without any prior notice. Furthermore, the proceedings were conducted at odd times; an action that breached Article 118 (2) of the Constitution. Those actions denied the public the right of access to information and fair administrative action as envisaged in Articles 35 and 47 of the Constitution respectively.
22.The 1st appellant stated that the Third Reading of the Committee of the Whole House was met with a furore, noisy exchange and chaos out of which the Speakers lost control of the proceedings. As a result, the Speakers became partisan, biased and lacked decorum and dignity. It argued that those proceedings fell short of the standards set out in Articles 10 (2) and 117 (1) of the Constitution. In addition, the proceedings failed to encompass the diversity of the Nation and the will of the people contrary to Article 94 (2), 95 (1), (2) and (3) as well as Part 4 of the Constitution. The 1st appellant stated that the debate was conducted in haste, speed-rolled and lacked inclusivity on account of the “tyranny of numbers” that proliferated the House.
23.The 1st appellant decried that the actions of the National Assembly undermined the legislative authority of the people of Kenya contemplated in Article 1 of the Constitution and failed to conduct its business autonomously as a separate and distinct arm of the government. That the failure to involve the Senate in the process undermined the architecture, legal structure and framework of the legislature and the process of legislation in accordance with the Constitution.
24.Continuing, the 1st appellant contended that the Speaker of the National Assembly unconstitutionally referred the said Bill to the President, who assented to it. It argued that the actions of the President infracted the provisions set out in Articles 115, 131 (2) (a), (c) and (e) of the Constitution since he failed to ensure that the Bill was passed in accordance with the Constitution.
25.On form and substance, the 1st appellant alleged that the Bill, and the statute that morphed from the Security Laws (Amendment) Bill, contravened several provisions of the Constitution including Articles 25, 27 (1), (2), (4) and (5), 28, 29 (a), (b), (d) and (f), 31, 32 (1), (2) and (4), 33 (1), 34 (1) and (2), 35 (1), 39 (1), (2) and (3), 47 (1), 49 (1), 50 (1), (2) and (4) and 51 (1) and (2). In the same vein, the Bill was inimical to Articles 2 (1), (2), (3), (4), (5) and (6), 3 (1), 10 (1) and (2), 12 (2), 24 (1), (2) and (3), 93 (2), 94 (2), (4), (5) and (6), 95 (1), (2) and (3), 96 (1) and (2), 97 (1), 109 (1) and (4), 110 (3), (4) and (5), 117 (1) and (2), 118 (1), 122 (1), (2) and (4), 124 (1), 131 (2) (a), (c) and (e), 238 (2) (a) and (b), 239 (2) and 244 (c) of the Constitution. Withal, the Bill and the Act contravened the principles of national security.
26.Dissecting the provisions of the Act and the amendments made to several statutes from its operationalization, the 1st appellant avowed that:26.1.Sections 4 and 5 of the Act together with sections 8 and 9 of the Public Order Act contravene Articles 238 and 239 of the Constitution to the extent that a Cabinet Secretary is not a member of any national security organs. Consequently, the Cabinet Secretary was not obligated to comply with the principles of national security and perform the functions and powers of the national security organs as stipulated in Article 239 (3) of the Constitution;26.2.Section 12 of the Act and section 66A (1) and (2) of the Penal Code contravene Article 33 (a) of the Constitution for not defining the offence, leaving a wide interpretation of it that would trigger acts of genocide and other atrocities. That Section 66A of the Penal Code contravened Articles 28 and 29 of the Constitution for they contemplated the arrest, prosecution and conviction of a person unaware of the investigations and operations of the National Police Service or the Kenya Defence Force;26.3.Section 16 of the Act and section 42 of the Criminal Procedure Code are inconsistent with Articles 25 and 50 of the Constitution as they deny an accused person adequate time and facilities to prepare a defence. That Sections 42A and 344 (a) of the Criminal Procedure Code violated Articles 24, 36, 39 and 50 of the Constitution for placing a blanket assumption of guilt after conviction and sentence without justification;26.4.Section 25 of the Act and Section 18A of the Registration of Persons Act conflict with Articles 12, 14 and 24 of the Constitution as envisaged, are unreasonable and unjustified the denial of a Kenyan citizen by birth to hold a passport or other document of registration or identification. It was apprehensive that the said provisions ignored genuine mistakes of date of birth, description of counties or wards and public officials assigned to county units and administrative areas when canceling registration;26.5.Sections 26 and 29 of the Act as read with sections 20A and 59A of the Evidence Act violate Articles 25 and 50 (2) of the Constitution for limiting the right to a fair trial including the right to remain silent and not testify during a trial;26.6.Section 34 of the Act and Sections 2 and 4 of the Firearms Act contravene Articles 26, 29, 34, 40 (1) and 43 (1) of the Constitution since they outlawed bullet proof vests, telescopes, bullet proof gear and armored vehicles. That amendment had the effect of taking away the right to life, self-protection and self- protection measures.26.7.Section 48 of the Act and Section 16A of the Refugees Act violate Articles 2 (5) and (6), 21 (4) and 59 (2) (g) of the Constitution, Articles 3 and 4 (d) of the United Nations Refugee Convention and the Protocol relating to the Status of Refugees on non-discrimination of refugees to the extent that the power would be abused and used discriminatorily to target members of the Somali community or such other origin from North Eastern. In addition, the provisions violate the principle of non-refoulment;26.8.Sections 58 and 86 of the Act and Sections 12, 65 and 58 of the National Intelligence Service Act contravene Articles 10, 73, 93 (1), 232, 238 (2), 245 (1) and 248 (2)(j) of the Constitution for threatening to usurp the independent authority of the office of the Inspector General of Police and the National Police Service as well as national security;26.9.Section 56 of the Act and Section 42 of the National Intelligence Service Act is a breach of Articles 19, 20 (1), (2), (3) and (4), 28, 29, 31, 47, 49 and 50 of the Constitution for failing to protect the rights of arrested persons;26.10.Section 64 of the Act and Section 30 of the Prevention of Terrorism Act contravene Article 50 (2) of the Constitution for leaving the definition of the offence too broad and imprecise as to be a candidate for abuse, mischief and transgressions.26.11.Section 30 (F) (1) and (2) of the Prevention of Terrorism Act breached Articles 33 and 34 of the Constitution for being oppressive and unjustified;
27.In view of the foregoing, 1st appellant in its petition prayed for:
28.The 2nd appellant was enjoined in the proceedings at trial as the 4th interested party. Supporting the petitions, the 2nd appellant raised the following concerns which we summarize, inter alia: that it considered the Bill and in collaboration with other Civil Society Organizations, prepared and submitted a detailed memorandum to the National Assembly articulating proposed amendments; that due to paucity of time, the memorandum submitted did not adequately address the issues therewith; that the process of preparation of the Bill before the National Assembly was impetuous and thus did not achieve its purpose; and that the public meeting did not only start on time but was also too transient to adequately address the concerns in the Bill. Further, the notice was too short as a result of which few participants attended the meeting. Resultantly, the process was inimical to the requirements of the Constitution; that the proceedings of 18th December, 2014 were marred with chaos thereby compromising the entire legislative process as could be established from the 10-minute video recorded evidence; that the Bill was too omnibus to be read through in a short period of time; that the Bill raised issues concerning counties but did not involve the Senate; that several standing orders of the National Assembly were disobeyed; that the direct appointment of the Inspector General of Police by the President was unjustifiable in an open and democratic society and was therefore wrong and unconstitutional; that certain provisions in the Act remained unconstitutional for limiting human rights and fundamental freedoms; that the Act was an anathema to international law; and that the tenor and effect of the Bill only exacerbated the issues it attempted to address.
29.The 3rd appellant, a human rights consortium was also enjoined in the petition as the 6th interested party in the proceedings at the High Court. It described its mandate as one that promotes, implements and protects the fundamental rights and freedoms of expression, opinion and access to information contained in the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and Articles 33 and 35 of the Constitution.
30.The 3rd appellant supported the petitions on the following synthesized grounds: that Sections 12, 64 and 69 of the Act violated Articles 31, 33 and 35 of the Constitution; that Section 12 offended the principle of legality and vagueness thereby failing the ‘prescribed by law’ test; that Sections 64 of the Act, that sought to introduce Sections 30 and 30F of the Prevention of Terrorism Act, applied broad terminologies incapable of precise or objective legal understanding; that the said section failed on the principle of legality for placing prior restraint on media freedom and usurping the powers of the National Police Service; that the section also violated Article 35 of the Constitution and prior censorship of freedom of information on account of national security as contained in Principles 2 and 23 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information; and that Section 69 of the Security Laws (Amendment) Act 2014, introducing Section 36A of the Prevention of Terrorism Act, introduced arbitrary mass surveillance without reasonable suspicion or judicial oversight thereby violating Articles 24, 31 and 239 of the Constitution.
31.The respondents opposed the petition. They filed their response to the petitions through the replying affidavits of Asman Kamama, sworn on 28th December, 2014; Justin Bundi the then Clerk of the National Assembly sworn on 21st January, 2015; Monica Juma, the then Principal Secretary, Ministry of Interior and Co-ordination of National Government; and Haron Komen, Commissioner for Refugee Affairs.
32.They generally deposed that the process, enactment, coming into force and the substance therewith of SLAA Act 2014 was proper and in conformity with the Constitution and procedure in the following manner: that the promulgation of the Act was inspired by attacks in Mandera County by suspected Al Shabaab terrorists on 22nd November, 2014 and 2nd December, 2014; that in order to canvass the issue of insecurity, a security committee team was established to make recommendations on the way forward; that in its report presented on 4th December, 2014, it was recommended that various security laws be amended; that on 8th December, 2014, the SLAA Bill, 2014 was published; that its publication period was shortened in line with Standing Order No. 120; that a committee was constituted to receive and tabulate its report on the memoranda to be submitted by the public; that the committee received memoranda from several groups during the public participation process; that the Bill was passed in accordance with Articles 118 and 122, Chapter 8 and Part IV of the Constitution; that the public participation process was adequate, sufficient and compliant; that at least 46 natural and juristic persons participated in the public meeting; that the debate, precipitated by the tabling of the Security Laws (Amendment) Bill, 2014, complied with the standing orders of the House; that the committee dutifully and diligently discharged its mandate; that at the infancy stage of the Bill, certain clauses that were contentious were either redrafted or deleted; that as captured in correspondence from the Speakers of both Houses, the Bill did not concern counties; that the committee presented its report to the floor of the House and subsequently the President and which report was composed of the memoranda of members of the public as well as the committee’s proposals and recommendations; that during the Third Reading, although the House proceedings were suspended in the morning hours on account of disorder, the same proceeded later in the day; that the Standing Orders of the National Assembly allow for the reduction of time for debates; that the disorder was occasioned by members of the 1st appellant; that no strangers participated in the debates; that the Bill did not contain extensive amendments as to find it non-compliant with the Statute (Miscellaneous Amendment) Act; that the statute sought to correct minor deficits to several subsisting legislative instruments; that the Speaker ipso facto presided over the proceedings and could not thus be condemned to have been biased; and for those reasons, the petitions were an abuse of the process of the court, misplaced and misconceived and were therefore for dismissal.
33.When the appeal was heard on 11th December, 2023 on the GoTo virtual platform, Mr. Ochiel Dudley together with Ms. Eileen Imbosa learned counsel appeared for the 2nd appellant while Mr. Mbugua Mureithi was present for the 3rd appellant. The 1st appellant and its counsel were absent in spite of being duly served with the day’s hearing date.
34.Mr. Ochiel submitted that although the memorandum of appeal had about 20 grounds, he would argue two thematic areas, the first broad ground being that the procedural flaws in enacting the SLAA violated the Constitution and rendered the Act unconstitutional. The second broad ground canvassed various sections of the SLAA that substantively violated the Constitution.
35.On the first ground, counsel submitted that the Standing Orders are an edict of the Constitution. They are rules imposed by the Constitution under Articles 107, 117, and 124. It was his submission that Article 124 in particular, provides for the orderly conduct of the legislative process which has a purpose under Article 10, providing for good governance and that cuts across all organs of government. As such, when a debate in the National Assembly is disorderly, and a law is passed in the circumstances in which the impugned security law was passed, then the violation of the standing orders, which hampered orderly debate, violates the Constitution. For that reason, the product emanating therefrom cannot be lawful or constitutional.
36.According to the counsel, the High Court erred in excusing the disorderliness under which SLAA was passed and finally assented to by the President. He urged us to watch the video clip which captured the chaos in the House during the debate as a testament that indeed the circumstances under which the Bill was passed were not conducive. He faulted the High Court for ignoring the images in the video clip, which he argued that if it had considered, would have arrived at a different finding. He went on to state that the High Court made a finding based only on the evidence in the Hansard and ignored the acts of December of 2014, when the entire nation watched members of the National Assembly fight, perhaps for the first time ever in the history of this country, forcing through, clause after clause of the Bill, through the disorder. One group shouting ‘aye’, another shouting ‘nay’, and the closest getting passed the nation watched. As such, he submitted that the National Assembly erred in the way it recalibrated the evidence of that chaos. Further, the High Court was wrong when, although it had already ruled that the video evidence properly formed a part of the record, it came to considering that evidence, evaluating it, and giving it the necessary and the logical legal conclusion, went back to the authenticity of the evidence. Evidence it had already ruled on record was properly admitted.
37.On the issue of public participation, counsel submitted that there was evidence by Yash Pal Ghai, in paragraph 9 of his affidavit, that the time given for the exercise was too short. The National Assembly gave about five days for public participation, including the Jamhuri Day weekend, which was a public holiday, from 9th to about 15th December 2014 and a weekend in between. Further, when the National Assembly called for public views, the committee was already sitting and considering the Bill which had 22 major amendments. From the record, there was again evidence by Yash Pal Ghai requesting to furnish his views on the Bill but the time given was insufficient considering that he was only able to access the Bill on the 10th of December 2014 when already two days had gone by. Therefore, the High Court was wrong in failing to find that the time given for public participation was insufficient.
38.It was further argued that the Bill set the precedent, where the National Assembly publishes a Bill with many provisions and then gives members of the public only three days to make their comments. This makes public participation illusory and not meaningful, where the public is not given enough time to interrogate a Bill and for Members of Parliament to engage meaningfully with their representatives.
39.On the substantive front, counsel argued that the High Court did not apply the Article 24 analysis on some of the contentious provisions. This Court has held, in Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR and Seventh Day Adventist Church (East Africa) Limited vs. Minister for Education & 3 others (Civil Appeal 172 of 2014) [2017] KECA 751 (KLR) that the three-part Article 24 analysis is mandatory when any provision is said to violate the Constitution. Counsel thus submitted that there was no analysis on sections 13, 14, 62, 93 of SLAA which purported to impose mandatory minimum sentences irrespective of the fact that the issue of mandatory maximum sentences has become a major subject of discourse in this Court's jurisprudence and before the Supreme Court in Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017), culminating in both Courts nullifying the mandatory death sentence for the offence of murder. However, in this decision, High Court excused mandatory minimum sentence.
40.Further it was argued the court sanctioned the application of Section 12 of SLAA to amend Section 12 of the National Police Service Act. The effect of these actions was to eliminate the requirement for prior, fair, and competitive recruitment of the Inspector General before the President appoints him; that this amendment was unlawful because under Articles 73(2) of the Constitution, a holder of a State office is either elected or appointed through free and fair elections or by way of a competitive recruitment process.
41.Counsel also took issue with Section 14 of SLAA which introduced the offense of insulting modesty. He argued that the same is vague. He cited the case of Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 Others [2017] eKLR where this Court spoke at length about the void for vagueness doctrine; that a norm, especially one that imposes a criminal penalty, must be clear and not unambiguous. In the footsteps of this proposition, the High Court nullified several vague sections because if an Act is vague, then it is not law for the purpose of Article 24. He continued that the first limb of that test is limitation by law; which means a vague norm is not law.
42.Counsel further submitted that the High Court also excused Sections 15 and 66 allowing pretrial detention for 90 days under the Criminal Procedure Code and for 360 days under the Prevention of Terrorism Act. He argued that the two sections derogate from the right to a speedy trial thereby violating the right to a fair trial.
43.Counsel urged this Court to allow the appeal and award reliefs prayed for; that since time had passed since this appeal was filed, if the Court finds that the impugned sections of SLAA are unlawful, then it be at liberty to craft the appropriate prospective reliefs. In so doing, all trials which have already occurred pursuant to the sections be taken into account. Furthermore, for purposes of certainty and predictability in legal processes, the pronouncements do take effect from the date of judgment.
44.The 3rd appellant filed its written submissions dated 17th October, 2019. It limited its appeal to ground 18 of the memorandum of appeal. It submitted that the trial court erred in upholding the provisions of Section 69 of SLAA, introducing Section 36A of the Prevention of Terrorism Act, since it allowed for unbridled mass surveillance on the public by any security agencies without due process or prior court sanction. In addition, the said surveillance was permitted without prior reasonable suspicion or justification thereby violating fundamental rights and freedoms. As a result, the provision was mischievous for expanding the interpretation of communication to mass surveillance, expansion of legal authority for all mass surveillance to all security organs and the circumvention of prior judicial safeguards.
45.The 3rd appellant argued that the sections violated Articles 24 and 31 of the Constitution, Article 17 on the International Convention on Civil and Political Rights and General Comment No. 16 of the United Nations Human Rights Committee for the following reasons: the provisions contemplate an interception of all forms of communication as defined in Section 2 of the Kenya Information and Communication Act; that the communication is not classified as either public or private; and that the limitation is captured in broad terms. It also submitted that no safeguard measures have been put in place to ensure that the discretion therein is not abused.
46.While admitting that the right to privacy is not absolute, it was submitted that Section 36A of the Prevention of Terrorism Act derogates from the core and essential content on the right to privacy; that it lacked inbuilt measures to safeguard the core and prohibitory nature of the right to privacy.; and that for that reason, it was unjustified and unconstitutional.
47.The 3rd appellant relied on United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’s report dated 23rd September, 2014 (A/69/397) to underscore that the prevention of terrorism is a legitimate aim for interference. However, the interference must be legally circumspect. Reliance was placed on the report’s excerpts captured in paragraphs 11, 12, 30, 35, 36, 45, 46, 47, 51 and 52 to buttress this argument. It submitted that the High Court erroneously concluded that the said provision was constitutional, as read together with other sections, yet the said provision did not make any other references to the Prevention of Terrorism Act.
48.Lauding the findings of the High Court to the extent that Sections 35 and 36 of the Prevention of Terrorism Act were fully compliant with the proportionality test of limitation on the right to privacy, it was argued that the High Court ought to have adopted the same reasoning and approach to find Section 36A unconstitutional.
49.Continuing, the 3rd appellant submitted that the High Court failed to distinguish that Sections 35 and 36 on the one part and Section 36A on the other part, provided for different types of interception of communication; that Section 36A envisioned a broad sweep and legal platform for mass extra-judicial surveillance to wipe out the core content of the right to privacy.
50.Further that, by supplementing Section 36A with Sections 35 and 36 thereby validating it, the High Court improperly adopted a statutory interpretation; that the result is that a latter enactment, being inconsistent with an earlier provision, impliedly repeals the earlier provision. In any case, Section 36A was a stand-alone provision and nothing stopped Parliament from expressing otherwise. In this regard, the case of Elle Kenya Limited & 9 others vs. Attorney General and 3 others [2013] eKLR was cited for this proposition.
51.Fortifying that statutory safeguards in the limitation of fundamental rights and freedoms cannot be left to judicial implication or reading-in, the 3rd respondent relied on the South African case of Ashok Rama Mistry vs. the International Medical and Dental Council of South Africa and 6 others (CCT 13/97) [1988] ZACC 10. It further complained that the High Court gave a liberal, instead of a strict and narrow, construction and interpretation of it. It was thus unconstitutional since it offered nothing of substance and unfairly limited fundamental rights and freedoms. To this end, cases Attorney General and another vs. Randu Nzai Ruwa & 2 others [2016] eKLR and Attorney General and another vs. Kituo Cha Sheria & 7 others [2017] eKLR were relied upon.
52.We were accordingly urged to allow the appeal. This is a first appeal. The duty of this court on first appeal was well articulated in the case of Abok James Odera T/A A.J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR that held as follows:
53.As a first appellate Court, we are vested with the jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable sacrosanct right of the parties and unless restricted by law, the whole case is opened for rehearing on questions of fact and the law. The judgment of the appellate court must therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising. This, alongside the contentions put forth, and pressed by the parties for decision of the appellate court. In reversing a finding of fact, the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
54.We have extensively considered the appeal, the prolix documents and pleadings before us and the fastidious submissions filed by all the parties herein. We wish to observe that it is regrettable that the 1st appellant failed to participate in the hearing of this appeal despite being served with the hearing notice for reasons known to itself. That notwithstanding, from the written and the oral submissions we postulate the following germane issues for determination and shall analyze them sequentially:a.Whether there were procedural violations during the passing of the contentious Act of Parliament.b.Whether the provisions of the SLAA as cited by the parties are unconstitutional and if so, whether the High Court erred in holding that those provisions did not contravene the Constitution.
Whether there were procedural violations in the passage of the bill that rendered the acts that were passed unconstitutional.
55.The 2nd appellant is dissatisfied with the enactment of the impugned provisions on the following grounds:i.Whether there was adequate public participation;ii.Whether there was a violation of the standing orders during the passage of the bill;iii.Whether there was concurrence between the speakers of the 2 Houses of parliament and if not, whether this rendered the bill unconstitutional; andiv.Taking into account the circumstances in which the bills were passed by Parliament whether the bill was properly presented to the President for assent.
56.As to whether there was public participation in the enactment of the SLAA, we must restate and re-emphasize that public participation remains foundational in the doctrines of democracy. Democracy is premised on the principle that all citizens are equally entitled to a say in the decisions and the decision making process affecting their lives. Citizens' participation is thus rudimentary and fundamental to the functioning of a democratic system of governance as enshrined in Chapter one of the Constitution of Kenya.
57.Public participation is therefore a decision-making process calling for the participatory index of those affected or likely tobe by a government-made decision. Against the backdrop of democracy and the nuances of inclusivity of citizens’ right to have a say, public participation is not akin to a simple informative process to the people about the conduct of Parliament, delegation of decisions to the public, or conveying decisions already made. Public participation is a process that facilitates the generation and confirmation of decisions through consultations with different groups, classes of groups, natural and jurisdiction persons and entities before a decision is arrived at It is a cultivated campaign to give a voice to the voiceless. It is not ticking of the box marking that a legal requirement has being fulfilled.
58.When it comes to creating law, the circumstances dictate that Kenyans are involved in the legislative process affecting them. Public participation in the legislative process is a foundational constitutional principle hinged on Articles 1, 10 (2) (a), 35, 118, 119, 124, 194, 201, 221, 232, and the Fourth Schedule to Part 2 (14) of the Constitution of Kenya.
59.Article 10 of the Constitution provides that one of the National values and principles of governance in Kenya is Public participation. In particular, Article 10 (2) provides that;
60.The above values and principles bind all state organs, state officers and all other persons in applying or interpreting the Constitution, enacting or applying any law or implementing policy decisions. The importance of public participation in all spheres of life is cast in stone and cannot be wished away by Parliament or any public body.
61.We are alive to the fact that the relevance of public participation has been so apparent that there has developed a need to legislate public participation into its own law. There is currently in situ a Public Participation Bill 2024 that was received by the Office of the Attorney General from the Clerk of the National Assembly. We hope that the same shall dispel the quagmire brought about by the absence of legislation since the Constitution is silent on what constitutes public participation. Nonetheless, public participation has been the subject of debate in several fora in our jurisdiction and beyond.
62.The South African Constitutional Court in the case of Matatiele Municipality & others vs. President of the Republic of South Africa & others (2) (CCT 73/05A) [2006] ZACC 12 expressed the significance of public participation as follows:
63.Taking cue from the above observations, the right to participate in decision making on matters affecting the people not only inspires confidence but also promotes respect. This underscores the provisions Article 28 of the Constitution, which provides that every person has a right to dignity and the right to have that dignity respected and protected.
64.This Court, differently constituted in National Assembly & another vs. Okoiti & 55 others [2024] KECA 876 (KLR) made the emphasized on the importance of public participation as that which cannot be bypassed as the same in enshrined in the Constitution. For this reason, a departure from this process is an assault on the Constitution. The Court further ruminated itself as follows on its relevance and significance:
65.The Supreme Court in British American Tobacco Kenya, PLC formerly British American Tobacco Kenya Limited vs. Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) [2019] KESC 15 (KLR) laid down the principles delimited the framework for public participation as follows:
66.The application of public participation is also captured in the Standing Orders of the National Assembly. At Standing Order No. 127 (3), a committee to which a bill has been established shall facilitate public participation of the bill through appropriate mechanisms that include but are not limited to inviting submissions of memoranda, holding public hearings, consulting relevant stakeholders and consulting technocrats on technical subjects.
67.Having set out the law on public participation, we will now address the grievance raised by the appellants against the rebuttals. As we have observed above, central to this dispute was the question whether there was public participation, adequate or otherwise, in the enactment of SLAA.
68.While submitting before this Court, the 2nd appellant posited that there was no proper public participation before the enactment of the impugned Act. It further submitted that the National Assembly only reserved five days for public participation exercise. Those days computed, included a public holiday that fell on 12th December and the weekend. The 2nd respondent also lamented that when the National Assembly called for public views, the committee was already sitting and considering the bill substantively. Therefore, it was manifest that the August House provided three days for public participation. In its view, that period was gravely insufficient as the bill sought to introduce a whopping 22 major amendments.
69.The appellants have also argued that the mode of advertisement in the Daily Nation and The Standard newspapers on Wednesday 10th December 2014 did not lend itself to a proper avenue for public participation as the period for publication of the Bill was reduced from fourteen days to one day. In addition to this, the advertisement was only made on the 10th December 2014 for a consultative meeting with the relevant committee of the National Assembly to be held on 11th December 2014. They opined that there was no proper circulation of the notice or the Bill itself and even if it was there, the same was limited to Nairobi County; denying the audience of the other 46 counties of the Republic of Kenya. The appellants’ case was further that there was no attempt to carry out civic education and to widely reach the majority of Kenyans who would be afflicted by limitations of rights conveyed the Bill. The appellants thus submitted that the High Court erred in failing to find that the time given for public participation was insufficient.
70.A reading of the record of appeal reveals that the Attorney General had put a spirited defence in advancing that Parliament had published in local dailies, of wide circulation, inviting written memoranda to be submitted within 5 days from the date of the notice. That it was further informed to the public that the Committee would sit for 3 full days in order to receive oral submissions and given the urgency of the matter urgent legislative responses within the short timetables. The urgency was met by the need to enact a statute in response to the loss of lives and property spiraled as a result of an upsurge in insecurity across the country.
71.The learned judges of the trial court, after analyzing the evidence and the proceedings, were of the opinion that there was proper public participation that was sufficient given the prevailing circumstances at the time. The court stated inter alia that:
72.As to whether there was proper and sufficient public participation, we are aligned with the decision of the Apex Court in British American Tobacco Kenya, PLC vs. Cabinet Secretary For The Ministry Of Health & others (supra), and shall not rehash the principles set out thereto.
73.We have had the advantage of analyzing the intention of the SLAA. The Act was intended to spearhead the fight against terrorism rampant at the time the Bill was drafted. The Act was inspired by the upsurge in attacks within Mandera County by suspected Al Shabaab terrorists between 22nd November, 2014 and 2nd December, 2014. An ad hoc security committee was subsequently established to address this concern and provide proper recommendations. In its report presented on 4th December, 2014, it was recommended that various security laws be amended. Resultantly, on 8th December, 2014, the Security Laws (Amendment) Bill 2014 was published. Owing to the urgency of the issue at hand, the publication period was shortened from fourteen days to one day in line with Standing Order No. 120. Thereafter, the committee was constituted to receive and tabulate its report on the memoranda to be submitted by the public.
74.The Bill, as enacted at that time, received a multiplication of feedback from various persons, groups and organizations including the appellants herein.
75.Looking at the trail of events and the explanations preferred both before this Court and the trial court by the Attorney General, we are satisfied that indeed there was public participation that was proper and sufficient. We observe that at least 46 natural and juristic persons participated in the public meeting and handed over the memoranda before the committee. The circumstances called for the chain of events that took place and which events were acceptable and provided in law.
76.We have also taken into account the submission that the local dailies only reached one county. However, nothing was presented before the trial court as to demonstrate that the said argument was verifiable. This Court is alive to the fact that newspapers of the local dailies are sent to all counties every day and the contrary was not established either to the satisfaction of the trial court or this Court.
77.Regarding the furore that was observed resulting from the Third Reading of the Bill, no evidence of bias, lack of decorum and dignity was furnished before the trial court as advanced by the appellants. We further find no evidence that the proceedings failed to encompass the diversity of the Nation and the will of the people contrary to Article 94 (2), 95 (1), (2) and (3) as well as Part 4 of the Constitution and lacked inclusivity. Those arguments must consequently fail.
78.Our findings are fortified by the South African case of Minister of Health and Another vs. New Clicks South Africa (Pty) Ltd and Others (CCT59/04) [2005] ZACC 14 where the court stated thus:
79.We hasten to add that, in the absence of a legal framework governing public participation, we are alive to the fact that the period given in furnishing public participation may be enlarged to suit the needs of the satiation at hand. The circumstances in the present dispute justified the reduction in the time frame to address the rising and fearful cases of insecurity in the county. Taking into account, the circumstances of this case and the threat that the country was then facing the shortening of the period for public participation is justifiable and this does not in any justify the shortening of the period in all cases. Each case will be determined on its own circumstances. We therefore find that there were no procedural violations during the passing of the SLAA. That argument must fail and is consequently dismissed.
ii. Whether there was a violation of the standing orders in the passage of the Bill.
80.The Standing Orders are the primary rules of the House and provide for the conduct of its proceedings and exercises its powers. The term “Standing Orders” reflects the character of these rules. In other words, they are orders of the House that remain in place until the House revokes or amends them. The term was inherited from the Parliament of the United Kingdom where it is still used by both the House of Commons and the House of Lords. (See Simon Patrick “A History of the Standing Orders” in Paul Evans (ed) Essays on the History of Parliamentary Procedure: in honor of Thomas Erskine May (Hart Publishing, Oxford, UK, 2017).
81.They are adopted solely by the House and are not intended to diminish or restrict the House’s rights, privileges, immunities, and powers, which are secured principally by statute. The Standing Orders regulate and moderate the exercise of legislative power and capacity, and are appropriately seen as constitutional rules. They are permanent rules that remain in force until the House makes a positive decision to suspend, amend, or revoke them. The Standing Orders bring order and structure to the work of the House and its committees. They balance the legitimate roles and expectations of Government and non-Government parties in the House’s legislative, scrutiny, and representative functions. In particular, the objectives of the Standing Orders are to translate statutory requirements into practice, to ration scarce time, to promote good process, and to provide a basis for political agreement about the management of business.
82.The Constitution under Article 124(1) grants Parliament the powers to make Standing Orders. Based on the above explanation, the standing orders in respect of the impugned decision were adopted on 9th January 2013.
83.The appellants had asked the trial court to interrogate the conduct of the National Assembly in regard to the Standing Orders of the House. The reason for this was that the process that led to the enactment of SLAA on the basis that it was marred by breaches of the Standing Orders of the National Assembly. That there was fracas and confusion during the passage of SLAA. The 2nd appellant availed a ten-minute clip to which it related to the events of 18th December 2014 which demonstrated the extraordinary mayhem and chaos, at least for the ten minutes that it ran. There was a further allegation that strangers not only participated in the proceedings of the House on 18th December 2014, but that during voting, the Speaker presided over a chaotic voting process in which strangers, including security personnel and other staff, participated in voting during the passing of various clauses of the Bill in breach of the Constitution and Standing Orders.
84.However, this was countered by the respondents through the Attorney General who, whilst relying on the affidavit of the clerk of parliament reiterated that although there was chaos, debate proceeded on the Bill, and a vote took place that culminated in the enactment of the impugned legislation.
85.The trial court in resolving the issue inquired as to whether the Court had the jurisdiction to interrogate whether the National Assembly breached its own Standing Orders? After analyzing various decisions, the court stated that:
86.We have analyzed the decisions cited by the judges of the High Court and the reasoning to their conclusion and we are in total agreement with the above finding on the particular issue. The High Court ably and sequentially summarized the process leading up to the enactment of the SLAA as follows and the same is undisputed:
87.The appellants submitted that when a debate in the National Assembly is disorderly, and a law is passed in the circumstances in which SLAA was passed, then that violation of the standing orders, for orderly debate violates the Constitution hence the product cannot be lawful or constitutional. According to counsel, the High Court excuses the disorderliness on the reasoning that although there was some chaos, although there was disorder in the National Assembly, SLAA was passed and was eventually assented to by the president. This was however, contrary to video evidence on record. That as such, the High Court made a finding based only on the evidence in the Hansard and ignored the acts of December of 2014.Further, the High Court went wrong when, although it had already ruled that the video evidence properly formed a part of the record, when it came to considering that evidence, evaluating it, and giving it the necessary and the logical legal conclusion, the High Court went back to the authenticity of the evidence. Evidence it had already ruled on record was properly admitted.
88.It is our view that the Hansard of the National Assembly by dint of standing order No. 247 is the official record of proceedings of the Parliament and from the same we are able to ascertain that there were moments of loud consultations during the debate and vote on the Bill but ultimately the Bill was passed as rightly too stated by the High Court. The fact that the clip played for only ten minutes cannot therefore be conclusive that the same was the character of the whole process through the time the parliament was in session. The appellants’ complaint that the learned judges had admitted the evidence of the clip but only to question the same in the judgment is neither here nor there. We say so because admission of a document to be used in evidence does not deny the court the mandate to question the document itself. The court would have no question for documents not admitted in evidence as they do not form part of the court record susceptible for analysis. Thus, the court rightly questioned the authenticity of the same given that the appellants are well aware with the use of evidence of such a nature and what the Evidence Act provides on the same.
89.We are in agreement with the finding of the learned judges on this issue that even though there might have been chaos in the parliament, the same did not negate the mandate to legislate and the passage of the Bill therefore was not vitiated by the complains raised by the appellants.
ii. Whether there was concurrence between the speakers of the 2 Houses of parliament and if not, whether this rendered the bill unconstitutional
90.Central to the issues raised at trial was whether there was concurrence between the speakers of the two houses of Parliament, the absence therefore rendering the process flawed. We have had the advantage of looking at the proceedings at trial and the record of appeal. On 15th December 2014, the speaker of the National Assembly wrote to the speaker of the Senate requesting his considerations regarding the procedure for enacting the SLAA. In its letter of 18th December 2014 the speaker of the Senate urged that if four contentious clauses in the Bill had been deleted, the Bill may not concern counties therefore rendering the input of the Senate superfluous. These correspondences were in furtherance of the provisions set out in Article 110 (3) of the Constitution and standing order no. 122 of the National Assembly Standing Orders.
91.In addressing this issue, the learned judges of the trial court held as follows and which position we fully concur:
Whether the provisions of the slaa as cited by the parties are unconstitutional and if so, whether the high court erred in holding that those provisions did not contravene the constitution.
92.Mr. Ochiel and Mr. Muriethi, learned counsel for the 2nd appellant and 3rd appellant respectively, singled out specific sections of the SLAA which they submitted were unconstitutional. Mr. Mureithi indicated that his client’s grievance was limited to section 69 of the SLAA, which introduced section 36A to the Prevention of Terrorism Act of 2012, which we shall address later in this judgment. Mr. Ochiel on the other hand contended that the learned trial Judges failed to consider and determine what constitutes an adequate limitation statement under Article 24(2); whether the failure to include a limitation statement whenever a provision limited a fundamental right or freedom as required by Article 24(1) is unconstitutional; and failed to conduct a systematic analysis to consider and rule on whether each limitation was justified in a free and democratic society, taking into account all relevant factors, as is mandatory under Article 24(1).
93.To answer this question, we find it necessary to restate the applicable principles for declaring a statute unconstitutional at the outset. Firstly, the presumption is that every Act of Parliament is constitutional, and the burden of proof lies on any person who alleges otherwise. The basis of this presumption is that it cannot be the intention of the Legislature to interfere with fundamental rights and freedoms. This presumption was well articulated in the case of Hamdarada Dawakhana (Wakf) Lal Kuan Delhi & another vs. Union of India Air & others (1960) AIR 354, as follows:
94.The Court further cited the holding of Das, C.J. in Shri Ram Krishna Dalmia vs. Shri Justice S. R. Tendolkar and others (1958) AIR 538, who observed as follows:
95.The onus is on the party alleging unconstitutionality to prove that a statute expressly infringes on constitutional rights and freedoms or its scope and application is ambiguous and doubtful in this respect. Article 2 (3) of the Constitution in this respect stipulates that the Constitution is the supreme law of the land and declares that any law or conduct inconsistent with it is null and void to the extent of its inconsistency. The principle of legality and constitutionality will operate such that the ambiguity is resolved in favour of the protection of fundamental rights and freedoms. Since the principle of legality operates to resolve ambiguity in the broad sense, it can conversely be rebutted by clear and unambiguous language. The Supreme Court of Kenya weighed in on this principle and explained it in detail in Law Society of Kenya vs. Attorney General & another [2019] KESC 16 (KLR) as follows:
96.There is need to clarify that the onus on a party alleging unconstitutionality is only with respect to the first step of the inquiry undertaken by a Court, namely to establish whether or not the law or conduct entails a breach of the right in question. The party alleging such breach bears the burden of demonstrating that an infringement or limitation has occurred. Once a prima facie violation of a guaranteed right is established, the second stage of the enquiry requires an investigation as to whether or not the limitation of the right by law of general application is justifiable. The burden of justification for proving that the limit on a fundamental right is permissible rests upon the party seeking to uphold the limitation.
97.Secondly, in determining whether a statute is unconstitutional, the Courts must determine the objects and purpose of the impugned statute, which includes discerning the intention expressed in the statute, and determine whether the purpose of a provision or its effect, may lead to unconstitutionality of the statute or provision. This the position that was adopted in the case of R vs. Big M Drug Mart Ltd (1985) 1 SCR 295, thus:
98.The principle was similarly applied in the case of Olum and Another vs. Attorney General [2002] 2 EA, where the Constitutional Court of Uganda stated:
99.The Constitutional Court of South African also explained as follows in the case of Zondi vs. MEC for Traditional and Local Government Affairs (CCT 73/03) [2004] ZACC 19 at paragraph 90:
100.The Supreme Court of Kenya in Law Society of Kenya vs. Attorney General & another (supra) further explained as follows:
101.After making reference to the decision by this Court in Centre for Rights Education and Awareness & Another vs John Harun Mwau & 6 others, Civil Appeal No 74 and 82 of 2012 that, in determining whether a statute is consistent with the Constitution, a court must determine the object and purpose of the impugned Act and this can be discerned from the intention expressed in the Act itself, the Supreme Court concluded as follows:
102.Thirdly, the Constitution is to be given a purposive and liberal interpretation in determining the constitutionality of legislation. When upholding the Constitution, the courts are required to uphold the values underlying the Constitution. The Supreme Court of Kenya In the Matter of Interim Independent Electoral Commission [2011] eKLR discussed the need for Courts, while interpreting the Constitution, to favour a purposive approach as opposed to formalism as follows:
103.Article 259 (1) of the Constitution provides that the Constitution shall be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights, permits the development of the law, and contributes to good governance. This Court, dealing with holistic interpretation of the Constitution in Centre for Rights Education and Awareness & Another vs. John Harun Mwau & 6 others [2012] eKLR, held as follows:
104.When interpreting the Bill of Rights, Article 20 (4) also calls upon courts to promote the values in an open and democratic court based on human dignity, equality, equity and freedom and the spirit, purport and the objects of the Bill of Rights. As regards the constitutional standards in Article 24 (1) with respect to limitations of fundamental rights and freedoms, we adopt the findings by the trial Court, which was guided by principles that have emerged from various comparative judicial decisions. The trial Court in this respect considered the decision in S vs. Zuma & Others (1995) 2 SA 642 where the Court held that a party alleging violation of a constitutional right or freedom must demonstrate that the exercise of a fundamental right has been impaired, infringed or limited, and once a limitation has been demonstrated, then the party which would benefit from the limitation must demonstrate a justification for the limitation.
105.Also cited was the case of R vs. Oakes (1986) I SCR 103, which required that the limitation be one that is prescribed by law, must be part of a statute, and must be clear and accessible to citizens so that they are clear on what is prohibited. Lastly, the trial Court also held that the objective of the law must be pressing, substantial, and important to society as held in R vs. Big Drug Mart Ltd (Supra). In seeking to achieve its objectives, the State should choose a proportionate way to achieve the objectives that it seeks to achieve and limit the right or freedom as little as possible as set out in R vs. Chaulk (1990) 3 SCR 1303. The High Court then concluded as follows:
106.Bearing these principles in mind, we shall now proceed to examine the constitutionality or otherwise of the sections of the SLAA that are challenged by the counsel for the 2nd and 3rd appellants.
107.Firstly, it was urged by Mr. Ochiel that the learned trial Judges failed to pay due regard to the historical motivation behind the creation of an independent office of the Inspector- General of the National Police Service, namely the misuse of police power to muzzle opposition, in finding that section 86 of the SLAA does not infringe the Constitution. The 2nd appellant’s concern is that section 86 permits the President to directly appoint an Inspector General without a competitive process. In light of this, counsel submitted that the office of the Inspector General is an office in the public service and is subject to Article 232 of the Constitution. For these reasons, section 86 therefore derogates from the requirements of the Constitution on competitive recruitment processes.
108.Section 86 of the SLAA amended Section 12 of the National Police Service Act by deleting sub section (2) 3), (4), (5), and (6).and substituting therefore the following subsection:
109.Counsel noted that the previously existing section 12 of the National Police Service Act, did not take away the powers of the President to appoint the Inspector General but provided for a competitive recruitment process that upheld the spirit of fairness in appointment. It was further submitted that since it derogates from the requirements of Article 232, it is therefore unconstitutional.
110.We note that section 12 of the National Police Service Act provided that the Inspector-General of the Service was to be appointed by the President with the approval of Parliament.Once a vacancy arose, the President was to constitute a selection panel, whose composition was also set out in section 12. The panel’s mandate was to advertise and interview applicants and forward the names of three qualified persons to the President to nominate one. Thereafter, the President’s nominee would be presented to Parliament for approval or rejection.
111.Article 232 of the Constitution in this respect provides for the values and principles of public service as follows:“(1)The values and principles of public service include:a.high standards of professional ethics;b.efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitablec.provision of services;d.involvement of the people in the process of policy making;e.accountability for administrative acts;f.transparency and provision to the public of timely, accurate information;g.subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions; (underline ours)h.representation of Kenya’s diverse communities; andi.affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of--i.men and women;ii.the members of all ethnic groups; andiii.persons with disabilities.(2)The values and principles of public service apply to public service in--a.all State organs in both levels of government; andb.all State corporations.2.Parliament shall enact legislation to give full effect to this Article.”
112.“Public service” is defined in Article 260 as the “collectivity of all individuals, other than State officers, performing a function within a State organ”. It is notable in this respect that the Inspector General of Police is listed a state officers in the Article 260, and in this respect Article 245 (1) is specific and clear on the appointment process of the Inspector General as follows:“(1)There is established the office of the Inspector-General of the National Police Service.(2)The Inspector-General––(a)is appointed by the President with the approval of Parliament; and shall exercise independent command over the National Police Service and perform any other functions prescribed by national legislation.”
113.It is thus evident that the appointment process in Article 232 with respect to the public service is not applicable to the Inspector General of Police. It is also notable that this intention was deliberate on the part of the framers of the Constitution, since the appointment process of the Inspector General materially differs from that of the Deputy Inspector-Generals which is provided in Article 245(3) as follows: “(3) The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission.”
114.Lastly, we note that the need for the independence of the Inspector-General is specified by the Constitution with respect to the discharge of particular functions. Article 245(4) and (5) provides as follows in this respect:
115.Under Article 157(4), the Director of Public Prosecutions is given the power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction. The Constitution in this respect therefore provides the Inspector General with functional independence when discharging certain specified duties.
116.Despite these provisions, it is notable that the Constitution in Article 248 provides for only two independent offices namely: The Auditor-General and the Controller of Budget. Therefore, the Inspector General of Police is not an independent office. This distinction is important for the purposes of this appeal. This is because while the institutional independence of independent offices, particularly from the Executive, and in particular the President, is entrenched by the Constitution and made subject only to “the Constitution and the law”, this institutional independence is not accorded to the Inspector General. On the contrary, the Constitution expressly provides that the relevant Cabinet Secretary and the Director of Public Prosecutions may give policy and operational directions to the Inspector General of Police.
117.Another distinction is also found in the appointment process. Under Article 250 (4), the appointment of independent offices is required to take into account the national values mentioned in Article 10 and reflect the regional and ethnic diversity of the people of Kenya. This difference is also illustrious in the decision of the Supreme Court of Kenya in Advisory Opinion Reference No. 2 of 2014 – In the matter of the National Land Commission [2015] eKLR regarding the constitutional and legal implications for the provision of Independent Commissions and Offices set up by the Constitution. The Apex Court held:“(178)… How is the shield of independence to be attained? In a number of ways. The main safeguard is the Constitution and the law. Once the law, more so the Constitution, decrees that such a body shall operate independently, then any attempt by other forces to interfere must be resisted on the basis of what the law says. Operationally however, it may be necessary to put other safeguards in place, in order to attain ‘independence’ in reality. Such safeguards could range from the manner in which members of the said body are appointed, to the operational procedures of the body, and even the composition of the body. However, none of these ‘other safeguards’ can singly guarantee ‘independence’. It takes a combination of these, and the fortitude of the men and women who occupy office in the said body, to attain independence.”
118.As we have already pointed out, a different appointment process for the Inspector General is clearly set out by the Constitution. It is thus our view and conclusion that a holistic interpretation of the relevant provisions of the Constitution does not lend itself to a finding that section 86 of the SLAA was unconstitutional. We accordingly agree with the findings of the High Court that held as follows:
119.Mr. Ochiel also took issue with sections 13, 14, 62 and 93 of the SLAA which he submitted impose mandatory minimum sentences that were unconstitutional for breach of Articles 29 and 50 of the Constitution. In his view, those provisions curtailed judicial independence and the discretion of judicial officers to mete out appropriate sentence. The decision of the Supreme Court of Kenya in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR was cited for the holding that the mandatory nature of the death sentence in section 204 of the Penal Code deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases, and fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution.
120.Section 13 of the SLAA amended the Penal Code by inserting the following new section immediately after section 128 on offences by public officers:
121.Likewise, section 14 of the SLAA amended the Penal Code by inserting a new section immediately after section 251 on the offence of “insulting modesty by forcible stripping” as follows:
122.Section 62 on its part amended the Prevention of Terrorism Act (POTA) by inserting a new section, that is, section 12A on “possession of weapons for terrorist purposes” immediately after section 12 as follows:
123.Lastly, section 93 amended section 88 of the National Police Service Act by inserting a new subsection immediately after subsection (3) that provides for criminal proceedings against a police officer who commits a criminal offence against law as follows:
124.We note that the constitutionality or otherwise of the cited provisions on minimum sentences was never raised in the petition filed in the High Court, nor addressed in the impugned judgment. The arguments on minimum sentences were first raised in the submissions filed in the trial Court by the 2nd appellant, who was the 4th Interested Party in the High Court. This brings to fore two questions that we need to answer first, and the outcome will determine whether we proceed with a consideration of the impugned provisions.
125.The first question is whether an interested party, once joined to a suit, can raise new issues for determination, and if so in what manner. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) defines an interested party in Rule 2 as “a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation”. The role and extent of participation of parties joined as interested parties to a suit has been expounded on by the Supreme Court of Kenya in various decisions.
126.In the case of Muruatetu & another vs. Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (Civ) (28 January 2016) (Ruling), the Supreme Court (Rawal, Ibrahim, Ojwang’ Wanjala & Ndungu SCJJ) held as follows:
127.As regards an interested party raising new issues in a suit through a cross petition, the Supreme Court (Maraga, Ibrahim, Ojwang’, Njoki Ndungu & Lenaola SCJJ.) was also emphatic that this is not possible in the case of Methodist Church in Kenya vs. Fugicha & 3 others (Petition 16 of 2016) [2019] KESC 59 (KLR) (23 January 2019) (Judgment), and held as follows:
128.The second question is whether an interested party can raise new issues in its submissions. This Court (Mwera, Musinga & Ouko JJA.) emphasized in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & another [2014] eKLR that evidence in support of a case cannot be raised in submissions. The Court held as follows:
129.We accordingly find that the arguments on the impugned provisions on minimum sentences are not properly before us, having not been pleaded in the petition, and having been raised by the 2nd appellant for the first time in its submissions in the trial Court. In any event, we wish to observe that this issue has recently been settled by the Supreme Court in the case of Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others [2024] KESC 34 (KLR) where the Court observed as follows:
130.Mr. Ochiel additionally submitted that section 14 introduces an imprecise and ambiguous offence known as “insulting modesty by stripping”, whose ingredients are unclear yet it is trite law that a law creating an offence has to be clear and ambiguous. The 2nd appellant’s case therefore is that section 14 introduces an unambiguous offence. The 2nd appellant did not point out the manner of ambiguity in the text or scope of the offence. It must be emphasised that the burden of proof is upon the person alleging unconstitutionality to prove such ambiguity. In our view, the 2nd appellant has failed to do. We also note that this argument was raised for the first time at the submissions stage in the 2nd appellant’s submissions filed in the trial Court.
131.It was also urged that section 62 introduces section 12A to the Prevention of Terrorism Act which also derogates from the well- known principle that one is innocent until proven guilty. That it shifts the burden of proof to the accused person to prove his innocence by providing that a person in unlawful possession of improvised explosive devices, assault rifles, and rocket propelled grenades or grenades shall be presumed to be for terrorist or criminal purposes contrary to Article 50(2) (a) which provides for the presumption of innocence, and Article 25 on a fair trial being a non-derogable right. The decision by the Supreme Court of Canada in R vs. Oakes (supra] was cited for the holding that the presumption of innocence lies at the very heart of the criminal law.
132.We have gone through the three petitions and the decision of the High Court. We are unable to trace any challenge to the above provisions in the petition. Be that as it may, it was brought up for the first time in the submissions filed by the 2nd appellant in the trial Court. We decline the invitation to consider it for the reasons we have already stated with respect to other provisions that were first introduced in submissions in the High Court.
133.Learned counsel further assailed the learned Judges of the High Court for upholding the provisions of sections 15 and 66 of the Security Law (Amendment) Act (SLAA). Section 15 inserts a new section 36A to the Criminal Procedure Code(CPC) which reads:36A.(1)Pursuant to Article 49(1) (f) and (g) of the Constitution, a police officer shall present a person who has been arrested in court within twenty-four hours after being arrested.(2)Notwithstanding subsection (1), if a police officer has reasonable grounds to believe that the detention of a person arrested beyond the twenty-four-hour period is necessary, the police officer shall—a.produce the suspect before a court; andb.apply in writing to the court for an extension of time for holding the suspect in custody.(3)An application under subsection (2) shall be supported by an affidavit sworn by the police officer and shall specify—a.the nature of the offence for which the suspect has been arrested;b.the general nature of the evidence on which the suspect has been arrested;c.the inquiries that have been made by the police in relation to the offence and any further inquiries proposed to be made by the police; andd.the reasons necessitating the continued holding of the suspect in custody.(4)In determining an application under subsection (2), the court shall consider any objection that the suspect may have in relation to the application and may—a.release the suspect unconditionally;b.release the suspect subject to such conditions as the court may impose to ensure that the suspect—i.does not, while on release, commit an offence, interfere with witnesses or the investigations in relation to the offence for which the suspect has been arrested;ii.is available for the purpose of facilitating the conduct of investigations and the preparation of any report to be submitted to the court dealing with the matter in respect of which the suspect stands accused; andiii.appears at such a time and place as the court may specify for the purpose of conducting preliminary proceedings or the trial or for the purpose of assisting the police with their inquiries; orc.having regard to the circumstances specified under subsection (5), make an order for the remand of the suspect in custody.(5)A court shall not make an order for the remand in custody of a suspect under subsection (5)(c) unless—a.there are compelling reasons for believing that the suspect shall not appear for trial, may interfere with witnesses or the conduct of investigations, or commit an offence while on release;b.it is necessary to keep the suspect in custody for his protection, or, where the suspect is a minor, for his welfare;c.the suspect is serving a custodial sentence; ord.the suspect, having been arrested in relation to the commission of an offence, has breached a condition for his release.(6)The court may, for the purpose of ensuring the attendance of a suspect under subsection (4)(b)(ii) or (iii), require the suspect—a.to execute a bond for such reasonable amount as the court considers appropriate in the circumstances; andb.to provide one or more suitable sureties for the bond.(7)Where a court makes an order for the remand of a suspect under subsection (4)(c), the period of remand shall not exceed thirty days.(8)A police officer who detains a suspect in respect of whom an order has been issued under subsection (4)(c) may, at any time before the expiry of the period of remand specified by the court, apply to the Court for an extension of that period.(9)The court shall not make an order for the extension of the time for remand under subsection (8) unless it is satisfied that having regard to the circumstances for which an order was issued under subsection (4)(c), it is necessary to grant the order.(10)Where the court grants an extension under subsection (9), such period shall not, together with the period for which the suspect was first remanded in custody, exceed ninety days.”
134.Along similar lines, section 66 amends section 33 of the Prevention of Terrorism Act (POTA) to read:33.Remand by court1.A police officer who detains a suspect may, where he has reasonable grounds to believe that the detention of the suspect beyond the period specified in section 32 is necessary -a.produce the suspect before a Court; andb.apply in writing to the Court for an extension of time for holding the suspect in custody.2.In making an application under subsection (1), the police officer shall specify -a.the nature of the offence for which the suspect has been arrested;b.the general nature of the evidence on which the suspect has been arrested;c.the inquiries that have been made by the police in relation to the offence and any further inquiries proposed to be made by the police; andd.the reasons necessitating the continued holding of the suspect in custody, and shall be supported by an affidavit.3.A Court shall not hear an application for extension of time under subsection (1)(b) unless the suspect has been served with a copy of the application.4.In determining an application under subsection (1), the Court shall consider any objection that the suspect may have in relation to the application and may -a.release the suspect unconditionally;b.release the suspect subject to such conditions as the Court may impose to ensure that the suspect -i.does not, while on release, commit an offence, interfere with witnesses or the investigations in relation to the offence for which the suspect has been arrested;ii.avails himself for the purpose of facilitating the conduct of investigations and the preparation of any report to be submitted to the Court dealing which the matter in respect of which the suspect stands accused; andiii.appears at such a time and place as the Court may specify for the purpose of conducting preliminary proceedings or the trial or for the purpose of assisting the police with their inquiries; orc.having regard to the circumstances specified under subsection (5), make an order for the remand of the suspect in custody.5.In making an order for remand in custody under subsection (4)(c), the Court shall have due regard to the following factors -a.there are compelling reasons for believing that the suspect shall not appear for trial, interfere with witnesses or the conduct of investigations, or commit an offence while on release;b.it is necessary to keep the suspect in custody for the protection of the suspect or where the suspect is a minor, for the welfare of the suspect;c.the suspect is serving a custodial sentence; ord.the suspect, having been arrested in relation to the commission of an offence under this Act, has breached a condition for his release.6.The Court may, for the purpose of ensuring the attendance of a suspect under subsection (4)(b)(ii) or (iii), require the suspect -a.to execute a bond for such reasonable amount as the Court considers appropriate in the circumstances; andb.to provide one or more suitable securities for the bond.7.Where a Court makes an order for the remand of a suspect under subsection (4)(c), the period of remand shall not exceed thirty days.8.A police officer who detains a suspect in respect of whom an order has been issued under subsection (4)(c) may, at any time before the expiry of the period of remand specified by the Court, apply to the Court for an extension of that period.9.The Court shall not make an order for the extension of the time for remand under subsection (8) unless it is satisfied that having regard to the circumstances for which an order was issued under subsection (4)(c), it is necessary to grant the order.10.Where the Court grants an extension under subsection (9), such period shall not, together with the period for which the suspect was first remanded in custody, exceed three hundred and sixty days.”
135.Counsel contends that these provisions, which call for court sanctioned detention without trial of suspects for periods of 90 to 360 days in the CPC and POTA respectively, outside the constitutional limits of pre-trial detention of suspects, makes no provision for remedies for such detainee suspects in the event that the court sanctioned detention turns out to be baseless. Moreover, that the said provisions derogate from the right to a speedy and timely trial under the Constitution. Counsel submits that any detention without trial for 90 or 360 days cannot be justified in an open and democratic society.
136.In rejecting the argument that these two provisions run afoul the Constitution, the trial court held:
137.In determining whether the holding by the High Court was erroneous, the new provisions have to be examined against the rights of an arrested person under Article 49 (1) (f), (g) and (h) of the Constitution, which provide as follows:
138.As is evident and noted by the High Court, the Constitution sets out an outer limit of 24 hours from the time one is arrested and when brought before a court. At the first court appearance, the person is either charged or informed of the reason for detention continuing or be released. In this manner, the Constitution contemplates that there will be occasion when a person appearing in court for the first time would not be charged. But as a safeguard against possible abuse of this provision by the state, the Constitution is unequivocal that such person can only be held beyond this period pending a charge for compelling reasons and at the sanction and permission of court. Placed side by side with the constitutional provisions, the new statutory provisions not only rehashes and acknowledges the constitutional provisions as regards holding of a person pending a charge, but also fleshes out the manner in which the state can seek continued detention of a suspect.
139.Our courts have had the occasion to reflect on and settle the law on what amounts to a compelling reason in the context of Article 49(1)(h). For example, in Michael Juma Oyamo & another vs. Republic [2019] eKLR this Court laid out the law to be:
140.Looking at the list of factors set out in the impugned provisions that the court needs to consider in determining whether or not to sanction pre charge or trial detention, it is apparent that the provisions simply accord statutory imprimatur to case law developed criteria. These provisions are not a claw back of constitutional imperatives.
141.Regarding the argument that the provisions do not provide for remedies where the court sanctioned detention turns out to have been baseless, we do not think that it is the business of parliament to legislate on every conceivable matter. What should be of concern here is that a person who is wrongfully and maliciously detained is able to access a remedy. This, in our view, would be the business of the Law of Tort which provides remedies for the torts of unlawful detention and malicious prosecution. An aggrieved person can turn to this branch of the law for redress. It is futile and superfluous to legislate for a remedy that already exists.
142.The challenged provisions give the court discretion as to the period in which a suspect can be detained before a charge with the CPC placing an outer limit of 90 days and POTA capping it at 360 days. While these may appear to be long periods and could impact on the right to speedy trial as contended by the appellants, the statutory safeguard is that the detention is court sanctioned. A court must satisfy itself that exceptional circumstances exist to warrant detention for a prolonged period. The court process is the bulwark against abuse of these two provisions.
143.We now turn to section 56 of the SLAA. This provision repealed the entire Part V of the National Intelligence Service Act. Under the retired part was section 42 which read:
144.In place of Part V is the new section 42 which provides thus:42.1.In this Part - special operations means measures, efforts and activities aimed at neutralizing threats against national security.2.Where the Director-General has reasonable grounds to believe that a covert operation is necessary to enable the Service to investigate or deal with any threat to national security or to perform any of its functions, the Director General may, subject to guidelines approved by the Council, issue written authorization to an officer of the Service to undertake such operation.3.The written authorization issued by the Director-General under subsection (2) –a.shall be sufficient authorization to conduct the operation;b.may be served on any person so required to assist the Service or facilitate the covert operation or investigations required to be undertaken;c.may authorize any member of the Service to obtain any information, material, record, document or thing and for that purpose –i.enter any place or obtain access to anything;ii.search for or remove or return, examine, take extracts from, make copies of or record in any manner the information, material, record, documents or thing;iii.monitor communication;iv.install, maintain or remove anything; orv.take all necessary action, within the law, to preserve national security; and (a) Shall be specific and accompanied by a warrant from the High Court in the case of paragraph (c), and shall be valid for a period of one hundred and eighty days unless otherwise extended.”
145.Before the High Court, the appellants contended, as they do before us, that the provisions expand the powers of the National Intelligence Service to stop and arrest persons and to carry out covert operations despite vagueness in the language used without proper safeguards, statutory or judicial, to protect individuals from illegal detentions, unwarranted breach of their privacy and their right to dignity. It is argued that jurisprudence requires such limitations and provisions to be clear and that imprecise language is to open to abuse. It should not be left to the body to determine the meaning and purport of the provisions as the same should speak for themselves.
146.In determining that the new section 42 of the NIS Act was a permissible limitation of the right to privacy, the five learned Judges returned the following view:
147.As we understand it, the appellant’s grouse is that, unlike the repealed provisions, the new law does not provide sufficient safeguards as to when and the manner in which the National Intelligence Service is to undertake certain covert operations. Auxiliary to that complaint is that the language of section 42 is ambiguous and therefore prone to abuse.
148.In examining the twin criticisms, we compare the new provisions with the old provisions which to the mind of the appellants passed the constitutional muster. Whereas it is true that under new section 42 (1), the term ‘special operations’ is assigned a wide meaning as measures, efforts, and activities aimed at neutralizing threats against national security, sub- section 3 which is in respect to the authorization to undertake those operations in certain circumstances employs more specific language. In this regard, sub-section 3 (c) provides that covert operations which involve obtaining of any information, material, record, document, or thing and which entails the entering any place or obtaining access to anything, searching for or removing, examining, or extracting, or making copies of, or recording in any such manner the information, material, record, or document or thing, monitoring communication, installing, maintaining or removing anything, or taking necessary action within the law to preserve national security requires court sanction by way of a warrant. To be observed from this provision is that any covert operation that is likely to impinge on the right to privacy requires court sanction and it is for this reason that we endorse the finding of the High Court that the authorization involves a court process and this is in the unequivocal language of the impugned section 42 (3) (c).
149.As to the argument that the provisions regarding special operations by NIS can be abused to carry out arbitrary arrests and detention, we have already discussed the provisions of the new sections 36A of the CPC and 33 POTA which can be deployed to check any such unconstitutional conduct by NIS.
150.The counsel for the 3rd appellant on his part submitted that the provisions of section 69 of the SLAA which introduced section 36A of the POTA, allowed for unbridled mass surveillance on the public by any security agencies without due process or prior court sanction. In addition, the said surveillance was permitted without prior or reasonable suspicion or justification thereby violating fundamental rights and freedoms. As a result, the provision was mischievous for expanding the interpretation of communication to mass surveillance, expansion of legal authority for all mass surveillance to all security organs and the circumvention of prior judicial safeguards.
151.The 3rd appellant argued that the sections violated Articles 24 and 31 of the Constitution, Article 17 on the International Convention on Civil and Political Rights and General Comment no. 16 of the United Nations Human Rights Committee for the following reasons: the provisions contemplate an interception of all forms of communication as defined in section 2 of the Kenya Information and Communication Act; that the communication is not classified as either public or private and; that the limitation is captured in broad terms. It also submitted that no safeguard measures have been put in place to ensure that the discretion therein is not abused.
152.While admitting that the right to privacy is not absolute, Counsel submitted that section 36A of the POTA derogates from the core and essential content on the right to privacy. That it lacked inbuilt measures to safeguard the core and prohibitory nature of the right to privacy. For that reason, it was unjustified and unconstitutional.
153.The 3rd appellant relied on on United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’s report dated 23rd September, 2014 (A/69/397) to underscore that the prevention of terrorism is a legitimate aim for interference. However, the interference must be legally circumspect. He relied on the report’s excerpts captured in paragraphs 11, 12, 30, 35, 36, 45, 46, 47, 51 and 52 to buttress this argument. It submitted that the High Court erroneously concluded that the said provision was constitutional, as read together with other sections, yet the said provision did not make any other references to the POTA.
154.Lauding the findings of the High Court to the extent that sections 35 and 36 of the POTA were fully compliant with the proportionality test of limitation on the right to privacy, learned counsel submitted that the court ought to have adopted the same reasoning and approach to find section 36A unconstitutional. In addition, the 3rd appellant submitted that the High Court failed to distinguish that sections 35 and 36 on the one part and section 36A on the other part, were different types of interception of communication. Section 36A envisioned a broad sweep and legal platform for mass extra-judicial surveillance to wipe out the core content of the right to privacy.
155.That by supplementing section 36A to sections 35 and 36 thereby validating it, the High Court improperly adopted a statutory interpretation. This, bearing in mind that a latter enactment, inconsistent with an earlier provision, impliedly repeals the earlier provision. Secondly, section 36A was a stand- alone provision and nothing stopped Parliament from expressing otherwise. It cited the case of Elle Kenya Limited & 9 others vs. Attorney General and 3 others [2013] eKLR for this presupposition.
156.Fortifying that statutory safeguards in the limitation of fundamental rights and freedoms cannot be left to judicial implication or reading-in, the 3rd respondent relied on the South African case of Ashok Rama Mistry vs. the International Medical and Dental Council of South Africa and 6 others (CCT 13/97) [1988] ZACC 10. It further complained that the High Court gave a liberal, instead of a strict and narrow, construction and interpretation of it. It was thus unconstitutional since it offered nothing of substance and unfairly limited fundamental rights and freedoms. Counsel cited Attorney General and another vs. Randu Nzai Ruwa & 2 others [2016] eKLR and Attorney General and another vs. Kituo Cha Sheria & 7 others [2017] eKLR for those arguments.
157.Avowing that it was not premature to strike out section 36A of the POTA before the promulgation of the Cabinet Secretary’s regulations, the 3rd appellant justified that the provision threatened a violation of human rights and was thus for striking out. It urged this Court to allow the appeal. Similar arguments were made in the High Court, which found as follows in the impugned judgment:302.To our collective mind, and taking judicial notice of the numerous terrorist attacks that this country has experienced in the last few years, we are of the view that the interception of communication and the searches contemplated under the two impugned provisions of law are justified and will serve a genuine public interest. The right to privacy must be weighed against or balanced with the exigencies of the common good or the public interest: see Haughey vs Moriarty (1999) 3 I.R 1. In our view, in this instance, the scales tilt in favour of the common good.303.We are further satisfied that there are sufficient safeguards to ensure that the limitation of the right to privacy is not exercised, as the petitioners and Article 19 fear, arbitrarily and on a mass scale. Under the Prevention of Terrorism Act which had, prior to the enactment of SLAA and the introduction of Section 36A already contained limitations of the right to privacy, there are, we believe, safeguards to ensure that the process is undertaken under judicial supervision. It is, we believe, useful to set out the provisions of the Prevention of Terrorism Act as they are currently. Section 35, which limits various rights, provides as follows with regard to the right to privacy:35.Limitation of certain rights1.Subject to Article 24 of the Constitution, the rights and fundamental freedoms of a person or entity to whom this Act applies may be limited for the purposes, in the manner and to the extent set out in this section.2.A limitation of a right or fundamental freedom under subsection (1) shall apply only for the purposes of ensuring—a.the investigations of a terrorist act;b.the detection and prevention of a terrorist act; orc.that the enjoyment of the rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedom of others.3.The limitation of a fundamental right and freedom under this section shall relate to—(a)the right to privacy to the extent of allowing—i.a person, home or property to be searched;ii.possessions to be seized;iii.the privacy of a person’s communication to be investigated, intercepted or otherwise interfered with.(b)304.At Section 36, the Act currently provides as follows:36.Power to intercept communication and the admissibility of intercepted communication.1.Subject to subsection (2), a police officer of or above the rank of Chief Inspector of Police may, for the purpose of obtaining evidence of the commission of an offence under this Act, apply ex parte, to the High Court for an interception of communications order.2.A police officer shall not make an application under subsection (1) unless he has applied for and obtained the written consent of the Inspector-General or the Director of Public Prosecutions.3.The Court may, in determining an application under subsection (1), make an order—a.requiring a communications service provider to intercept and retain specified communication of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; orb.authorizing the police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication and to remove and retain such device.4.The Court shall not make an order under subsection (3) unless it is satisfied that the information to be obtained relates to—a.the commission of an offence under this Act; orb.the whereabouts of the person suspected by the police officer to have committed the offence.5.…6.…7.A police officer who intercepts communication other than is provided for under this section commits an offence and shall on conviction be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding five million shillings or to both.305.The new Section 36A of the Prevention of Terrorism Act cannot therefore be read in isolation. It must be read with Sections 35 and 36, which not only require the involvement of the court, but also include penal consequences for the unlawful interception of communication.”
158.We start by stating that we have no difficulty upholding the conclusion of the High Court that in view of the recent history of numerous terrorist attacks in our country, and if we may add, some of which were vicious and led to many deaths and life changing injuries and harm to the victims, public good justifies the limitation of the right to privacy in certain aspects and circumstances. That said, there is a marked difference between section 36 of POTA, which has not been sought to be faulted, and section 36A of POTA. The first is that the power to intercept in the former is granted only to the police while in the latter, it is to any National Security Organ. The interception under section 36 POTA requires permission of the court while the other does not. The third is that section 36 of POTA provides for a penal sanction for abuse of the power but section 36A does not provide for any sanction whatsoever. And we have to agree with learned counsel Mr. Mbugua that the High Court fell into error in using judicial craft to read into Section 36A a requirement of court sanction when the provision was studiously silent on it and we shall be suggesting why Parliament in its wisdom deliberately left out the need for court sanction in section 36A.
159.It is evident that the power granted to the state by the provisions of section 36A is wider that those of section 36. Yet this difference is defendable because the purpose of section 36A is to grant the state power to intercept communication for purposes of detecting, deterring and disrupting terrorism while section 36 is for purposes of obtaining evidence of commission of a terrorist act. The former grants power for prevention of terrorism. Prevention of the commission of a terrorist act may be a more concerted and wider effort that would involve other National Security Organs than just the National Police Service. Second, the exigencies of preventing the happening of terrorism may be such that it would ludicrous to require court sanction before intercepting communication that is intended to be used to mount or facilitate a terrorist act. However, it is not clear to us why, unlike in section 36, there would be no penal sanction for an abuse of powers granted in section 36A. Penal sanction could act as deterrence against abuse or misuse of that power and can prove very useful in tempering the limit this power has on the right to privacy. Put differently, the threat of a penal sanction may deter state actors from stepping out of line. This can mitigate in the inherent tension between the right to privacy and limits placed on that right by the provisions of section 36A in the war against terrorism.
160.We are however still asked to find that the words of the statute, to wit detect, deter and disrupt terrorism, are very broad terminologies which are open to abuse. It was suggested that the provisions would have been more specific on when the power could be deployed, for example only when a terrorist act is imminent.
161.On our part, we do not find the language to be problematic or lose because subsection 3 of the provision is unequivocal that the power is to be used for purposes of intercepting communication “directly relevant” to detecting, deterring and disrupting terrorism. We think and hold that the words “directly relevant” are a clear signpost on when the power can be deployed. To expect legislation to give a retail list on every instant when the power can be used can only be counterproductive in a world where technology in all spheres of life is ever so quickly evolving.
162.In the end, we reach a different outcome from the High Court regarding the constitutional validity of section 36A in so far as, by excluding penal sanction for the abuse of the powers granted therein, the provisions lack sufficient safeguard against impermissible violation of the right to privacy guaranteed by Article 31 of the Constitution.
Final Orders
163.In conclusion, we partially allow the consolidated appeals, only to the extent of the following orders:1.We set aside the findings of the High Court in the judgment delivered on 23rd February, 2015 in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR on the constitutionality of section 69 of the Security Laws (Amendment) Act, which introduced a new section 36A to the Prevention of Terrorism Act.2.We hereby declare section 69 of the Security Laws (Amendment) Act and consequently section 36A to the Prevention of Terrorism Act unconstitutional, for violating the right to privacy guaranteed under Article 31 of the Constitution. We however suspend the coming into effect of this declaration for a period of eighteen months, for Parliament to enact the appropriate safeguards in the operation of the section.3.All the other findings and orders made by the High Court in the said judgment are otherwise upheld.4.As the consolidated appeals concern matters of public interest, each party shall bear its costs of the appeal.Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024.ASIKE-MAKHANDIA………………………………JUDGE OF APPEALF. TUIYOTT………………………………JUDGE OF APPEALP.NYAMWEYA……………………………JUDGE OF APPEALG. W. NGENYE - MACHARIA..........................JUDGE OF APPEALM. GACHOKA, C.Arb, FCIArb……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.