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Law Society of Kenya v Attorney General & another [2021] eKLR REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION (Coram: A.C. Mrima, J.) CONSTITUTIONAL PETITION NO. E327 OF 2020 LAW SOCIETY OF KENYA.............................................................................PETITIONER AND 1. THE ATTORNEY GENERAL 2. INSPECTOR GENERAL OF NATIONAL POLICE SERVICE........RESPONDENTS JUDGMENT Introduction: 1. The Petition herein challenges the constitutionality of Section 5 of the Public Order Act, Cap. 56 of the Laws of Kenya (hereinafter referred to as “the Order Act”) and further challenges the legality and constitutionality of various directives issued by National Security Advisory Committee (hereinafter referred to as “The NSAC”) on 7th October, 2020 and adopted by the Cabinet on 8th October, 2020. 2. The Petitioner herein, The Law Society of Kenya, being a statutory society whose objectives include; assisting the Government and the Courts in matters relating to legislation, the administration of justice, the practice of law, upholding the Constitution and advancing the rule of law contends that the directives made by the NSAC which seek to allegedly remedy “unchecked utterances and political weaponization of public gatherings” as well the impugned provision cannot stand the test of the Constitution. 3. The Petition is opposed. The Petition: 4. The Petition is dated 12th October, 2020. It is supported by the Affidavit sworn by Collins Odhiambo on 12th October, 2020. In further support to the Petition, the Petitioner filed written submissions dated 20th October, 2020. 5. The Petitioner has summarized its case in its written submissions as under: 2. In the Petition and Supporting Affidavit thereto sworn on 12th October, 2020 by Collins Odhiambo, several challenges are raised on the propriety of the directives made by the National Security Advisory Committee and Section 5 of the Public Order Act. First, the legal existence of the National Security Advisory Committee and its power to direct the 2nd Respondent in the enforcement of http://www.kenyalaw.org - Page 1/34

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Law Society of Kenya v Attorney General & another [2021]

Case Law

Country

Kenya

Country Location

Latitude: 2.2319662848575907

Longitude: 37.627257845273796

Country Location (linked Case Law): Kenya

Decision Date: Aug 18, 2021

Case Status: Closed

Case Outcome (Procedural)

Motion Granted/Motion Denied

Case Outcome (Disposition)

Injunction, Order, or Motion Granted

Keywords

Public Order

Court Name: IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

Case Number: Constitutional Petition E327 of 2020

Case Summary: Facts The Law Society of Kenya (LSK) challenged the constitutionality of Section 5 of the Public Order Act and the legality of directives issued by the National Security Advisory Committee (NSAC) on 7th October 2020, which were later ratified by the Cabinet on 8th October 2020. These directives aimed to regulate public gatherings and processions to curb the spread of COVID-19. The LSK argued that these measures infringed on fundamental rights, including freedom of expression, assembly, and association.

Issue Whether the directives issued by the NSAC and ratified by the Cabinet were unconstitutional. Whether Section 5 of the Public Order Act was unconstitutional. Rule The constitutionality of laws and directives was evaluated under Articles 10, 19, 20, 21, 24, 27, 29, 32, 33, 34, 36, and 37 of the Constitution of Kenya, which protect fundamental rights and freedoms. The limitations under Article 24 of the Constitution were central to determining whether the directives and laws were justifiable in an open and democratic society.

Analysis The Court analyzed the directives and the role of NSAC in the context of the Kenyan Constitution.

Legality of NSAC and its Directives:

The Court scrutinized the legal standing of NSAC, which was not established under the Constitution or any statute. NSAC was identified as an administrative body within the Executive, lacking the authority to issue binding directives, especially those affecting the fundamental rights of citizens. The Court found that the directives issued by NSAC, later ratified by the Cabinet, were unconstitutional because they overstepped the constitutional limits by directing the National Police Service on how to perform its duties. This contravened Article 10(2)(a) and Article 245(2)(b) and (4) of the Constitution(Constitutional_Petition…)(Constitutional_Petition…). Constitutionality of Section 5 of the Public Order Act:

The petitioners argued that Section 5 of the Public Order Act was a colonial relic that unjustifiably restricted the freedoms of assembly, expression, and association. The Court noted that this section had been upheld as constitutional by the Court of Appeal in a previous case. However, Justice Mrima expressed a dissenting view, highlighting that the law was outdated and prone to abuse, as evidenced by its history of suppressing dissenting political views. Nevertheless, the Court was bound by the principle of stare decisis and upheld the constitutionality of Section 5 as determined by the Court of Appeal(Constitutional_Petition…)(Constitutional_Petition…). Conclusion The Court ruled that the directives issued by NSAC and ratified by the Cabinet were unconstitutional and void. However, the petition challenging the constitutionality of Section 5 of the Public Order Act was dismissed, as the Court adhered to the binding precedent from the Court of Appeal.

Case Significance: This case underscores the importance of adhering to constitutional mandates in the exercise of executive power, particularly in matters affecting fundamental rights and freedoms. The ruling highlights the judiciary's role in curbing executive overreach and emphasizes the need for statutory laws to be updated in line with constitutional provisions to prevent abuse of power.

Source URL: eKLR

Notes: he directives issued by NSAC on 7th October 2020 and ratified by the Cabinet on 8th October 2020 were declared unconstitutional, ineffective, and void ab initio. The Court upheld the constitutionality of Section 5 of the Public Order Act.

Related Law

Public Order Act [1950]

Collection

CIPIT

Primary Documents

Constitutional_Petition_E327_of_2020.pdf
english
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Supporting files

pdf

Directive.pdf126.9 kB