Law Society of Kenya v Attorney General & another [2021] eKLR 41. It is the 2nd Respondent's case that the directives by the NSAC are lawful government measures to contain the spread of Covid-19 and are enforced in the public interest. The 2nd Respondent contends that the directives have not been selectively enforced, citing "credible information" of potential violence in meetings halted and lack of "elevated risk" for breach of peace and compliance of Covid-19 guidelines for meetings that were not halted. It is concluded by the 2nd Respondent that the directives do not "derogate from the provisions of the Constitution or any written law." 42. The Respondents filed joint submissions. 43. They submitted that the provisions of section 5 of the Order Act are lawful and constitutional. They urged the Court to note that the provisions of section 5 of the Order Act have been subject of judicial determination in previous Court proceedings wherein the said section’s constitutionality was upheld by the Court of Appeal and that the findings which are binding to this Court. 44. The case is Court of Appeal in Nairobi Civil Appeal 261 of 2018 Haki Na Sheria Initiative v Inspector General of Police & 3 others [2020] eKLR where the Court held as follows: 32. As we embark on determining whether the impugned sections of the Act pass constitutional muster, we take cognisance of the fact that there is a general, although rebuttable presumption, that a provision of law is constitutional, and that it falls on the party alleging otherwise to prove its claim. This was the precedent set in Ndyanabo vs Attorney General [2001] 2 EA 495 where the Court of Appeal of Tanzania held as follows: In interpreting the Constitution, the court would be guided by the general principles that … there was a rebuttable presumption that legislation was constitutional, and…the onus of rebutting the presumption rested on those who challenged the legislation’s status save that, where those who supported a restriction on a fundamental right relied on claw back or exclusion clause, the onus was on them to justify the restriction. 34. This Court in Attorney General v Law Society of Kenya & Another [2017] eKLR (Civil Appeal No. 133 Of 2011) held that when determining the constitutionality of a statute or a provision of the law, it is important to consider the object, purpose and effect of implementation of that legislation. If the effect of the impugned law is to violate constitutional rights, then it must be declared so and struck down. In the words of the Court: The cardinal rule in construing a statute or a provision of a statute is to interrogate the intention expressed in the statute itself by the drafters. That intention must be determined by reference to the precise words used in the statute, their factual context, and, their aim and purpose, bearing in mind that each case must be resolved by reference to its particular factors. In other words, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect… 35. These are the principles that will guide us as we seek to determine whether the impugned provisions pass constitutional muster. Our starting point are the principles laid out in Article 259 of the Constitution which enjoin us to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law and human rights and fundamental freedoms in the Bill of Rights, permits the development of the law and contributes to good governance. 38. The objective of the Act should be discernible from the words used by the Legislature and the context of its enactment. The Supreme Court of India in Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and others [1987] 1 SCC 424 Observed thatInterpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. 39. Applying the above principle to this case, the purpose of the Act is evident from the preamble therein which reads: An Act of Parliament to make provision for the maintenance of public order and for purposes connected therewith. [Emphasis supplied] http://www.kenyalaw.org - Page 10/34