summary of the supreme court of Kenya judgement in petition no. 5 of 2021; Haki na Sheria Initiative v Inspector General of Police & 2 others.
Background
The Supreme court of Kenya had the opportunity to make a determination on the constitutionality of curfew orders, imposed in in Wajir, Mandera, Garissa and Tana River Counties as per sections 8 and 9 of the Public Order Act. The suit had been instituted following the Garissa University attack in April 2015 where curfew orders had been put in place by the Cabinet Secretary for Interior Security. These orders had been enforced by the National Police Service with the intention of preventing further attacks and maintain public order during the investigative process in the 4 Counties. The Court focused on the central issue, regarding whether the imposition of these curfew orders infringes upon the fundamental rights enshrined in the Constitution of Kenya including the right to life under Article 26; the Right to equality and freedom from discrimination under Article 27; the right to liberty under Article 29; freedom of conscience, religion, belief under Article 32 and the right to movement under Article 39.
ARGUMENTS BEFORE THE COURTS.
The Appellant argued that sections 8 and 9 of the Public Order Act were draconian provisions that give sweeping powers to the Cabinet Secretary and the police without checks and balances and lack parliamentary and judicial oversight contrary to Articles 58 and 95 of the Constitution. They also argued that the provisions do not provide timelines on the duration of curfews, contrary to Article 58, which stipulates the duration of a state of emergency.
The Appellant further argued that the curfew orders violated Article 26 of the Constitution claiming that restricting movement affects people’s ability to make a living and thereby threatened their right to life. Additionally, the Appellant alleged that the orders violated the right to freedom and security of the person as stipulated in Article 29. The Appellants continued to state that the curfew’s rules about limiting certain groups could lead to separation and unfair treatment, going against the right to equality and protection from discrimination provided for in Article 27. The Appellants also stated that the curfew unfairly stops Muslims from doing nighttime prayers during Ramadan which violated Article which provides for freedom of religion and worship. Finally, the Appellant brought for the issue of the curfew orders limiting the right to move freely, which is protected in Article 39.
The Respondents countered the Appellant’s contentions by asserting that the curfew orders do not violate rights but rather impose limitations on their enjoyment while meeting the requirements of Article 24 which provides conditions for limitations of human rights. The Respondents argued that restricting movement was essential for ensuring safety and security, particularly due to the loss of numerous lives in the terrorist attack and therefore provided a suitable basis for limitation. In response to the claim that the curfew violated Article 32, the Respondents ascertained that the curfew orders applied to all residents and did not specifically discriminate against the Muslim population’s freedom of religion.
PROCEEDINGS AT THE SUPREME COURT
Upon listening to both parties’ submissions, the Supreme Court found 2 issues for determination:
- Whether Sections 8 and 9 of the Public Order Act are unconstitutional vis a vis Article 58 of the Constitution.
- Whether the imposition of curfew in Wajir, Garissa, Mandera, and Tana River violated the rights enshrined under Articles 26, 27, 29, 32 and 39 of the Constitution.
In regards to the first issue, the supreme court agreed with the lower courts that the said sections of the Public Order Act are not unconstitutional. The court insisted that the Constitution doesn’t forbid the issuance of curfew orders under the Public Order Act and highlighted the fact that the Cabinet Secretary’s authority to issue curfew orders under sections 8 and 9 of the Public Order Act is not unlimited. These orders are issued based on advice from the Inspector-General of the National Police Service and local police officers to maintain public order. The court stated that Section 9(4) of the Act requires immediate reporting of curfew orders to the Commissioner of Police, who can modify or revoke them. Judicial oversight, in line with Article 58 of the Constitution also applies to curfew orders similar to a State of Emergency. The Court continued to state that despite amendments to the Public Order Act through the Security Laws (Amendment) Act, 2014, the power to declare curfews in Sections 8 and 9 remains unchanged.
In regards to the second issue the court stated that the curfew orders were legitimately issued in line with the Public Order Act’s intended purpose due to the gruesome terrorist attack at Garissa University and did not violate fundamental human rights. The court stated that the actions of issuing the curfew orders as a precautionary measure to avert any further potential risk upon the lives of the residents in the four counties were therefore legitimate. The Court also emphasized that there was need to maintain national security considering that the nature of terrorism translates across the victim country’s borders. The court concluded that the curfew’s objective of preserving life and security in the aftermath of a severe terrorist attack, outweighed the impact of limitations on movement and business activities. The court acknowledged the unfortunate restriction on religious practices during Ramadhan but deemed it justifiable considering the larger security concerns. The Court dismissed the appeal, finding it without merit
CONCLUSION
The Supreme Court’s determination, affirming the constitutionality of sections 8 and 9 of the Public Order Act carries far-reaching implications on the lawful limitations of human rights for the purpose of national security under the Constitution of Kenya, 2010. By endorsing the legal framework for issuing curfew orders, the Court sets a precedent for future situations where fundamental rights and freedoms might conflict with security measures. The Court’s decision serves as a guidepost, signaling that limitations on constitutional rights, as provided for under Article 24 of the Constitution, can be invoked to ensure public safety and security. This landmark judgement highlights the delicate balance between protecting individual liberties and safeguarding the country’s well-being and establishes a clear position on limitation of rights within the boundaries of legality, justifiability and proportionality.
DATE: August 17, 2023 BY: ANNE GATHIRWA
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke