REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO.628 OF 2014 CONSOLIDATED WITH PETITION NO.630 OF 2014 AND PETITION NO.12 OF 2015 BETWEEN COALITION FOR REFORM AND DEMOCRACY(CORD)…...…...............................…….1ST PETITIONER KENYA NATIONAL COMMISSION ON HUMAN RIGHTS......................................................2ND PETITIONER SAMUEL NJUGUNA NG’ANG’A.................................3RD PETITIONER AND REPUBLIC OF KENYA…………………………......…….1ST RESPONDENT ATTORNEYGENERAL……...………………….....………2NDRESPONDENT AND DIRECTOR OF PUBLIC PROSECUTION........1ST INTERESTED PARTY THE JUBILEE COALITION............................2ND INTERESTED PARTY KITUO CHA SHERIA....................................3RD INTERESTED PARTY KATIBA INSTITUTE.....................................4TH INTERESTED PARTY REFUGEE CONSORTIUM OF KENYA.............5TH INTERESTED PARTY ARTICLE 19:GLOBAL CAMPAIGN FOR FREE EXPRESSION...............................................6TH INTERESTED PARTY Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 1 TERROR VICTIMS SUPPORT INITIATIVE..................................................7TH INTERESTED PARTY AND LAW SOCIETY OF KENYA...................................1ST AMICUS CURIAE COMMISSION ON THE IMPLEMENTATION OF THE CONSTITUTION....................................2ND AMICUS CURIAE JUDGMENT Introduction 1. We are living in troubled times. Terrorism has caused untold suffering to citizens and greatly compromised national security and the security of the individual. There is thus a clear and urgent need for the State to take appropriate measures to enhance national security and the security of its citizens. However, protecting national security carries with it the obligation on the State not to derogate from the rights and fundamental freedoms guaranteed in the Constitution of Kenya 2010. It is how the State manages this balance that is at the core of the petition before us. 2. In the wake of the terrorist attacks in Kenya in the last months of 2014, the State enacted the Security Laws (Amendment) Act, No 19 of 2014 (“SLAA’). The Security Laws (Amendment) Bill was published on 11th December 2014. It was debated on 18th December 2014 and passed. It received Presidential assent on 19th December 2014. SLAA Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 2 came into force on 22nd December 2014. It amends the provisions of twenty two other Acts of Parliament concerned with matters of national security, and it is these amendments that have precipitated the petition now before us. 3. The petition challenges the constitutionality of SLAA and asks the court to determine four fundamental questions related to the process of the enactment of SLAA as well as its contents. 4. The first question concerns the extent to which this court may inquire into the processes of the legislative arm of government and in particular, whether this court can interrogate parliamentary proceedings. The second question concerns the nature and scope of the constitutional obligation of the legislature to facilitate public involvement and participation in its legislative processes, and the consequences of the failure to comply with that obligation. The third question is whether the amendments to various Acts of Parliament contained in SLAA which are impugned by the petitioners limit or violate the Bill of Rights or are otherwise inconsistent with the Constitution of Kenya. Should the court find such limitation, violation or inconsistency, then it must determine whether the limitation is justifiable in a free and democratic society. The last issue to consider is whether the prayers sought in the Petition should be granted or not. Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 3 The parties 5. The 1st petitioner is a coalition of political parties with representation in the National Assembly and Senate known as the Coalition for Reform and Democracy, popularly known by its acronym, “CORD” (“CORD”). CORD is the petitioner in Petition No. 628 of 2014. 6. The 2nd petitioner, Kenya National Commission of Human Rights,( “KNCHR”) is the petitioner in Petition No. 630 of 2014. KNCHR is a constitutional commission established pursuant to the provisions of Article 59 of the Constitution. 7. The 3rd petitioner is Samuel Njuguna Ng'ang'a, an Advocate of the High Court and a citizen of Kenya who filed Petition No. 12 of 2015 alleging a threat of violation of his constitutional rights and freedoms by SLAA. 8. The respondent in the consolidated petition is principally the Attorney General of the Republic of Kenya, though for some unclear reason, CORD enjoined the Republic as a respondent in its petition. The Attorney General was impleaded pursuant to the provisions of Article 156 of the Constitution. 9. Pursuant to orders of this court, the Director of Public Prosecutions (“the DPP”) was enjoined as the 1st Interested Party. The office of the DPP is established under Article 157 of the Constitution and vested with State powers of prosecution. Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 4 10. Also enjoined to the proceedings as the 2nd Interested party is a coalition of political parties known as the Jubilee Coalition (“Jubilee”). Jubilee commands a majority in the Parliament of Kenya. 11. Four civil society organisations representing different interests were also permitted to participate in the proceedings as interested parties. These are Kituo Cha Sheria (“Kituo”), Katiba Institute (“Katiba”); the Refugee Consortium of Kenya (“RCK”) and Article 19: Global Campaign for Free Expression, (“Article 19”) as the 3rd , 4th, 5th and 6th interested parties, respectively. 12. The 7th interested party is the Terror Victims Support Initiative (“Terror Victims”), an assemblage of terrorist attack victims in Kenya who assist and support each other as well as engaging the government in the eradication of terror attacks in the country. 13. Finally, the court permitted the participation of two organisations as amici curiae or friends of the court. The 1st amicus curiae is the Law Society of Kenya(“LSK”), a statutory body established under the provisions of the Law Society of Kenya Act . Under section 4 of the Law Society of Kenya Act, Cap 16 Laws of Kenya, the LSK has as its objects, inter alia, the obligation to assist the court and protect the public interest. 14. The 2nd amicus curiae is the Commission on the Implementation of the Constitution (“CIC”) which, like KNCHR, is a Constitutional Commission. CIC has its functions outlined under Section 5 of the 6th Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 5 Schedule to the Constitution. They include monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement the Constitution. Factual Background 15. The basic facts precipitating the petition are largely undisputed. 16. On 8th December, 2014 the Security Laws (Amendment) Bill 2014 was published in a special issue of the Kenya Gazette being Supplement No. 163 (National Assembly Bill No. 309) under the hand of Mr. Asman Kamama, the Chairperson of the Administration and National Security Committee of the National Assembly. The following day the Bill was introduced for the first reading in the National Assembly. Pursuant to Standing Order No.120 the period for publication was reduced from 14 days to 1 day. 17. By an advertisement published on the 10th of December, 2014 in the Daily Nation and the Standard newspapers, the National Assembly indicated that the days for public participation would be the 10th, 11th and 15th December 2014. Members of the public were thereby invited to submit their representations on the Bill either through written memoranda to the Clerk of the National Assembly in Nairobi or orally to the Committee which was to sit on the stated days between 10.00 am and 5.00pm. 18. Despite the dates for public participation published in the newspapers, on 11th December, 2014 the Bill was tabled for the 2nd Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 6 reading. Upon questions being raised in Parliament about the period for public participation, the Speaker of the National Assembly, Mr. Justin Muturi, ruled that public participation would continue after the 2nd reading. 19. The petitioners complain that all this was done contrary to the Standing Order No. 127 which requires that after its first reading, a Bill shall be committed to a committee which then conducts public hearings and incorporates the views and recommendations of the public in its report. 20. On the morning of 18th December 2014, the Bill was presented on the floor of the House, for consideration by the Committee of the Whole House as per Standing Order No. 133. According to the petitioners, there was great disorder in the House during the proceedings and the Speaker adjourned the morning session. In the afternoon of the same day the Bill was again placed before the Committee of the whole house, amendments were proposed to it, and, according to the petitioners, amid much acrimony and disorder, the Bill was purportedly passed. 21. It is not in dispute that on 19th December, 2014 the Bill was assented to by the President and, in accordance with its provisions, became operational on 22nd December, 2014. Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 7 Litigation history 22. Hot on the heels of the presidential assent and the coming into force of SLAA, CORD moved to court on 23rd December, 2014 seeking ex- parte conservatory relief to stay the operation of the Act. The court directed that the application dated 23rd December, 2014 be served upon the respondents and set the inter partes hearing for 24th December, 2014. The hearing did not however, proceed as the court granted to the DPP and other parties who had been enjoined to the proceedings time to file their responses.