Roundup: Kenyan court declines to reinstate suspended clauses in security law

Kenya's Court of Appeal on Friday rejected an application by Attorney General Githu Muigai to recall orders suspending eight controversial clauses in a national security law the Security Laws Amendment Act 2014.

The three judges rejected the application by the state to quash an earlier ruling by the High Court, saying the laws infringe upon the Bill of Rights as enshrined in the Constitution.

Judges Daniel Musinga, Paul Kiage and Agnes Murgor said no law can be allowed to undermine the rights of the citizens.

They also ruled that the Attorney General, which is the principal government advisor, had not proved that the suspension of the clauses had created a vacuum in fighting terrorism.

The appellate judges asked security agents to capitalize on other laws in securing the country which has been facing threats from Al-Shabaab since the East African nation launched cross border incursion in Somalia in 2011.

In his application seeking to reverse the order by High Court judge George Odunga, Muigai argued that the High Court did not have jurisdiction over the matter.

Odunga suspended the eight clauses in the security law in early January pending a further hearing.

"The learned judge of the High Court erred in law and in fact in failing to hold that in the circumstances of the case the operation of the law could only be stayed or suspended after sufficient proof at the hearing of the substantive petition," Muigai argued.

Muigai said Odunga erred in law, and in fact in failing to uphold the doctrine of presumption of constitutionality of the law till the same was proved to be unconstitutional.

Among the suspended clauses is one that amended the Public Order Act and made it mandatory for people to seek permission of the police before publishing images of terrorism victims.

Also suspended is a clause that gave the National Intelligence Service powers to monitor private communication and "authorize any member of the service to obtain any information, material, record, document or thing" considered a threat to national security.

Sections imposing jail terms of up to three years and hefty fines for reports deemed to undermine police investigations on terrorism have also been suspended.

The Friday ruling means that the affected sections remain suspended and no agency or authority can use them until the matter is fully determined by a bench which has been constituted by the Chief Justice to determine the constitutionality of the sections.

The hearings will be conducted in January and determination by Feb. 13, according to the directive issued by Chief Justice Willy Mutunga. Endi