Once again, the Kenyan courts have proved that they will not relent in their quest to ensure that the rule of law is upheld and that the rights of citizens are jealously protected. Yesterday (February 23rd 2015), a bench of five court of appeal judges declared eight clauses in the Security Laws (Amendment) Bill, signed into law by president Uhuru Kenyatta on December 19, last year ILLEGAL, hence null and void. This brings into sharp focus the kind of constitutional advice the president is getting from those charged to brief him on the constitutionality of the bills that are passed to him, from parliament, for signing into law. If I were the president, I would immediately sack my constitutional advisers for embarrassing my government.
The chief legal adviser of the government AG Prof. Githu Muigai, who is probably the most learned constitutional lawyer in the country, should have known better than to appeal the decision of the high court to suspend 8 clauses in the Security Laws (Amendment) Bill, which have been widely touted as draconian. His appeal has led to the government being humiliated for a second time, in a row, in a span of one month, when yesterday the court of appeal declared the contested clauses illegal. So instead of the appeal saving the government’s face, and by extension that of the president who signed the bill into law, it left lots of egg on both of them, handing clear victory to the CORD alliance and the Kenya Commission on Human Rights, who had taken the government to court over some unconstitutional clauses in the controversial bill.
Even from a layman’s point of view, the 8 clauses struck off by the courts don’t add any value to the fight against terrorism. The five judges asserted this fact when they quipped that “Insecurity in Kenya is not due to absence of laws but inefficiency of public bodies mandated to secure Kenyans,” In fact, none other than the AG himself had conceded, during the hearing, that there is rampant corruption and lack of coordination among the security agencies charged to curb terror threats. For instance, how could slapping the media practitioners with a heavy fine of up to KSh. 5 million, or a jail term of three years for publishing or broadcasting images of terror attacks, help in the fight against terror? This was clearly aimed at gagging the media and curtailing freedom of expression as enshrined in the constitution.
Section 12 of the Security Laws which proposed the stringent punitive measures, is obviously not clear on who would determine what stories undermine police investigations or what images would be deemed as causing fear among the public, hence promoting the terrorists agenda. This opened the section up for abuse by people, in authority, who might have vested interests against the media. Given that this is not the first time the media is under attack since the Jubilee government came into power; some clauses in this section raised many eye-brows. In early December 2013, a handful of MPs passed the Kenya Information and Communication (Amendment) Bill and the Media Council Bill, which caused shock waves in the country as it provided for wide-ranging government control of the media.
Among the provisions in that bill was a new government-controlled board which would have the power to regulate all forms of journalism, as well as the power to impose potentially crippling fines on any media houses and individual journalists found to have gone against the code of conduct, that was to be drafted by MPs. However, the constitutional advisers of the president must have luckily spotted the gaping holes in the bill, which would have made it make it toast in a court battle, and advised the president accordingly. The president declined to sign the bill into law instead sending it back to parliament with proposed amendments. This is what makes the comeback of clauses targeting the media in the security laws, just a year later, suspicious. One wonders why the president was not advised properly on the draconian clauses in the bill before he signed it into law!
And why is the government so determined to crack the whip on the media? The current digital migration standoff between the three main media houses and the CA (A gov’t media regulator), which has left the majority of Kenyans in what can only be termed as a news blackout for over a week now, after the three TV stations were switched off, indicates that the war waged against the media by government agencies is far from over.
The other section of the security laws Act which was declared unconstitutional by the judges is Section16, which denied accused people the right to access the evidence that the state prosecution intends to rely on in prosecuting them. The judges said that, “The provision was totally unjustifiable as it would lead to trial by ambush. Disclosure of evidence is very important to enable the accused prepare his defense,” Section 26 of the Act, which said that remaining silent during court proceedings would automatically be assumed to be proof that the accused is guilty did not make sense at all too! It is also among the sections that were struck off by the judges.
However, there are some clauses which were contested but the court upheld them. It remains debatable whether they might be open to abuse in future. One of them is Section 86 of the Act which amended the National Police Service Act to give the president power to appoint the IG. The judges reasoned that the public can still participate in the appointment through MPs, but we all know how the Kenyan parliament has been used before as a rubber-stamp for the executive’s agenda, especially when the governing coalition has a tyranny of numbers in the house. The other clauses that were upheld included the provisions that allow the Registrar of Persons to revoke an identity card and the National Intelligence Service to tap private telephone calls. These provisions risk being used to promote partisan political agenda in future.